The following Opinions are available for download:
Cases posted the week of 09/25/2006
Shannon Walker, et al. v. Rande Lazar, M.D., et al. - W2006-00225-COA-R3-CV View
Shelby County- The trial court granted Defendants’ motions to dismiss based on the statute of repose applicable to medical malpractice actions. Plaintiffs appeal, asserting the statute of repose was tolled where the action was brought on behalf of their minor children and commenced before December 9, 2005. We affirm in part, reverse in part, and remand.
Brenda Grimsley v. Zack Kittrell - M2005-02452-COA-R3-CV View
Maury County - This appeal involves a plaintiff’s efforts to pursue a personal injury claim arising from a rear-end collision. The plaintiff obtained a judgment for the damages to her automobile in the Maury County General Sessions Court and then filed suit to recover her personal injuries in the Circuit Court for Maury County. When the defendant moved for a summary judgment based on res judicata, the plaintiff argued that the defendant should not be permitted to assert this defense because he had stood silent when she announced in the general sessions court that she was reserving her personal injury claims for a later proceeding. The trial court granted the motion for summary judgment and dismissed the plaintiff’s personal injury claim. The plaintiff appealed. We have determined, as a matter of law, that the single injury rule prevents plaintiffs from splitting their causes of action and that the defendant neither waived nor should be estopped from asserting a res judicata defense based on the plaintiff’s decision to split her claim against the defendant.
D. E. Ryan v. Metropolitan Government - M2005-00761-COA-R3-CV View
Davidson County - In this zoning dispute, the local government appeals the assessment of attorney fees pursuant to the Tennessee Equal Access to Justice Act, contending the plaintiff was not eligible to recover attorney fees because he failed to prove he was a small business, as defined in Tenn. Code Ann. § 29-37-103(3). Finding the local government was not afforded a reasonable opportunity to challenge the plaintiff’s contention he qualified as a small business, we reverse and remand for further proceedings.
John McElroy v. Pamela Carter - M2005-00414-COA-R3-CV View
Sumner County - A man shot and wounded a cat owned by his neighbor as the animal exited from the bed of the man’s prized pickup truck. The cat died from its wounds shortly thereafter. The neighbor sued for the veterinary bills she incurred for treatment of the cat’s injuries. The truck owner counter-sued for the damage the cat allegedly caused to his truck by scratching the paint. After a bench trial, the court awarded the truck’s owner $6,500 in damages, which it offset by a $372 award to the neighbor for her veterinary bills. We reverse the award to the truck’s owner, since as a matter of law the cat’s owner cannot be held liable for not keeping her cat confined when the damage the cat allegedly caused was not foreseeable. Additionally, we find the evidence preponderates against a finding that the cat caused the damages complained of.
Patrick J. McRedmond, Jr., et al. v. Estate of Andrew Marianelli, et al. - M2004-01496-COA-R3-CV View
Davidson County - This is the third appeal of this shareholder derivative suit. Plaintiffs, minority stockholders in Elk Brand Manufacturing Company (Elk), a Kentucky corporation engaged in the apparel manufacturing business, brought suit in the name of the corporation against individual directors of the corporation. Plaintiffs allege the individual directors breached their fiduciary duties to the corporation by entering into an agreement that transferred revenue that could have been earned by Elk to another entity in which the defendant directors had an interest. After a trial by jury, judgment was rendered against one of the individual directors, Walter Marianelli, in the amount of $6,918,252.00, and another, David Manning, in the amount of $23,138.00. Plaintiff's attorneys were awarded attorneys' fees against Elk pursuant to the Kentucky common fund doctrine. The individual directors and Elk have appealed, alleging error in the jury instructions given by the trial court, the admission of certain evidence, improper argument of counsel, the trial court's approval of the verdict and the award of attorneys’ fees. Finding no reversible error, we affirm the judgment of the trial court.
CNA v. William King, et al. - M2004-02911-COA-R3-CV View
Cheatham County - A roofing contractor applied for workers compensation insurance, declaring in his application that he had no employees. He paid a $750 minimum premium, and the insurance company issued a policy. The company subsequently audited his records and assessed an additional premium of over $14,700 for roofers who worked under contract with him or his subcontractors, but who were not covered by their own workers compensation policies. The contractor refused to pay, and the insurance company brought suit. The contractor claimed at trial that all the workers were independent contractors and, thus, that he was not obligated to insure them. The trial court ruled against him. We affirm the trial court.
Tosha Miller v. Nashville & Davidson County - M2005-02334-COA-R3-CV View
Davidson County - This appeal involves a parent who fell on the aggregate concrete steps while leaving her children’s elementary school. The parent filed a negligence action against the Metropolitan Government of Nashville and Davidson County in the Circuit Court for Davidson County. Following a bench trial, the trial court determined that the sealed steps did not constitute a dangerous or defective condition and that the parent was at least fifty percent at fault for her injuries. The parent appealed. We have determined that the evidence supports the trial court’s conclusion that the condition of the school’s steps was not a dangerous or defective condition.
In Re: Randall B., Jr. - M2006-00055-COA-R3-PT View
Davidson County - This appeal involves the termination of a biological father’s parental rights with regard to his seven-year-old son. Both of the child’s parents have serious substance abuse issues. After the child’s mother voluntarily placed him and four of his siblings with the Association for Guidance, Aid, Placement and Empathy, Inc. (AGAPE), an AGAPE social worker prescribed tasks that the father would be required to complete before assuming parental responsibility for his son. Approximately ten months later, AGAPE filed a petition in the Davidson County Juvenile Court to terminate the father’s parental rights. Following a bench trial, the juvenile court determined (1) that the father had abandoned his son by failing to visit him regularly, (2) that the father had failed to comply with the requirements of his parenting plans, and (3) that the conditions that had led to placing the child in foster care persisted and would not, in all reasonable probability, be remedied at an early date. Thereafter, having concluded that terminating the father’s parental rights would be in the child’s best interests, the juvenile court terminated the father’s parental rights and named AGAPE the child’s custodian and guardian. The father has appealed. We have determined that AGAPE was obligated to make reasonable efforts to help the father address his serious drug addiction and that the record does not contain clear and convincing evidence that AGAPE’s efforts in that regard were reasonable.
Terry Clayton, et al. v. Camille Hernandez - M2005-01714-COA-R3-CV View
Davidson County - Trial court granted dismissal for failure of service of process although defendant failed to raise the defense timely by motion or in her answer. We reverse.
Mary Taylor-Shelby v. Shelby County Election Commission, et al. - W2006-00921-COA-R3-CV View
Shelby County - We dismiss this appeal for lack of subject matter jurisdiction under Rule 3 of the Tennessee Rules of Appellate Procedure where the record contains no final order(s) disposing of Plaintiff’s claims.
Jack McKinney, et al vs. Jeanetta Kimery, et al - E2005-02510-COA-R3-CV View
Unicoi County - Jack T. McKinney and his wife Brenda McKinney, obtained a judgment against Charles T. Kimery. After the judgment was recorded in the Register of Deeds’ office, Mr. Kimery and his wife conveyed property they owned as tenants by the entirety to Mr. Kimery’s mother. The McKinneys filed this action to execute upon the property and have it sold to satisfy the judgment lien. The issue presented is whether the McKinneys may levy against the entire interest in the property and have the property sold to satisfy their judgment lien, or whether the McKinneys’ lien attached only to Mr. Kimery’s separate, alienable interest in the property at the time of recording of the judgment lien, which consisted of Mr. Kimery’s right of survivorship. The trial court held that the McKinneys’ judgment lien attached to Mr. Kimery’s survivorship interest in the property at the time the judgment was recorded, and that the subsequent transfer of the property by both tenants by the entirety (the Kimerys) did not augment the interest to which the judgment lien attached, so that the McKinneys continued to hold a lien against the survivorship interest only after the transfer. We affirm the judgment of the trial court.
Kevin Fongnaly v. Vienqrhone Fongnaly - M2005-01757-COA-R3-CV View
(Dissent) - View
(Appendix) - View
Rutherford County - In this divorce case, the Trial Court awarded primary custody of the parties’ minor children to the father. The mother appealed and we affirm the Trial Court’s Judgment.
Alexander Wells v. Tennessee Board of Regents, et al. - M2005-00938-COA-R3-CV View
(Dissent) - View
Davidson County - Following termination of his employment, a professor at Tennessee State University prevailed in this protracted tenure termination proceeding. On remand to Chancery Court following a successful appeal, the professor filed a Tenn. R. Civ. P. 60.02 motion for relief from the pre-appeal judgment to assert a claim for back pay. The Chancellor granted relief and awarded back pay, which the defendants challenge on two grounds. They contend the court abused its discretion by awarding Rule 60 relief, and because back pay is not specifically authorized by statute, an award of back pay violates the sovereign immunity doctrine. Finding no error, we affirm.
Kathryn Chamberlain v. The Kroger Company - M2005-00435-COA-R3-CV View
Davidson County- The Appellant, Kroger Limited Partnership I, appeals from a judgment of the trial court awarding the Appellee, Kathryn Chamberlain, $473,500.00 for injuries she alleged to have sustained in a fall at the Belle Meade Kroger on August 24, 1999. The issues raised on this appeal are (1) whether the trial court erred by directing a verdict that the tinnitus suffered by Ms. Chamberlain was caused by her fall; (2) whether the trial court erred by excluding evidence of a failed marriage of Ms. Chamberlain and of a physician’s note indicating her tinnitus resulted from a motor vehicle accident; and (3) whether the trial court erred in admitting evidence of amounts charged for prescription medications purchased by Ms. Chamberlain. We agree with the Appellant that it was error for the trial court to have granted a directed verdict with regard to the issue of causation of Ms. Chamberlain’s tinnitus and reverse the judgment of the trial court.
Parker Wilkes, A Minor, et al. v David Wilkes - M2005-02658-COA-R3-CV View
Robertson County - In this negligence case, the plaintiff appeals from a jury verdict in favor of the defendant. The plaintiff argues that the trial court should have granted a judgment notwithstanding the verdict or a new trial because the defendant’s testimony established the necessary elements of a negligence cause of action. We affirm the judgment of the trial court.
Paul L. Reed v. CSX Transportation - M2004-02172-COA-R3-CV View
Davidson County - A railroad employee appeals the trial court’s grant of summary judgment to his employer in this Federal Employer’s Liability Act case. Because the employer was not negligent, we affirm the judgment of the trial court.
Barry Bass v. Larry Billeaudeaux, Jr., et al. - W2006-01219-COA-R3-CV View
Shelby County - This is a personal injury action. The trial court awarded summary judgment to Defendants based on the statute of limitations. We reverse and remand for further proceedings.
Cynthia Raulston vs. Porter Raulston - E2005-02463-COA-R3-CV View
Hamilton County - In this divorce action, the Trial Court granted the divorce, and awarded the wife marital property and attorney’s fees. On appeal, we affirm in part, reverse in part, reducing the award of marital property awarded to the wife, and reverse award of attorney’s fees.
Anesthesia Medical Group v. Paul Buras - M2004-01599-COA-R3-CV View
Davidson County - This case involves a claim for liquidated damages arising from the breach of a contract. The defendant resigned from his position with the plaintiff medical group, thereby triggering the provisions in the contract for repayment of an educational loan and of a sign-up bonus the plaintiff employer had given him. The court ordered repayment of those items, but held that the medical group was not entitled to the liquidated damages for early resignation set out in the contract, reasoning that those damages were punitive in nature and were an unenforceable penalty. The medical group appealed, arguing that the court should have awarded the liquidated damages, or in the alternative, the damages it actually suffered from the defendant’s resignation. We reverse the trial court and award the plaintiff the liquidated damages under the contract.
Crom-Clark Trust v. J. Patrick McDowell, et al. - M2005-01097-COA-R3-CV View
Davidson County -
This appeal involves a dispute regarding a contract to manage real property located in Memphis. After the owner of the property obtained a default judgment against the management company in the Davidson County General Sessions Court, the management company filed a de novo appeal in the Circuit Court for Davidson County. The management company thereafter filed a motion to dismiss the suit. While that motion was pending, the trial court entered an order dismissing the appeal on the ground that the management company had not obtained a trial date in the manner required by Local Rule 20(b). Thereafter, the trial court denied the management company’s Tenn. R. Civ. P. 60.02 motion. The management company has appealed. We have determined that the trial court erred by declining to grant the management company relief from the dismissal of its de novo appeal.
Sara Jane Davidson v. Tom Davidson, et al. - W2005-02343-COA-R3-CV View
Dyer County - Husband, a farmer, and wife, a teacher, married in 1992. In 1993 or 1994, they purchased an eighteen acre parcel of real property located in Newbern, Dyer County, Tennessee. In 1995, the couple secured an insurance policy from Tennessee Farmers Mutual Insurance Company through their local Farm Bureau agent. The policy covered husband’s farming operation and the house under one policy. In 2001, husband and wife separated. The couple renewed the insurance policy annually, and the most recent renewal was set to expire on February 22, 2003. Prior to the ending date of the policy, and during the couple’s separation, the insurance company sent insurance premium notices to a post office box established by Husband. Husband decided not to renew the policy. Accordingly, the insurance company maintained that the policy expired on February 22, 2003 due to the nonpayment of the premium. On May 4, 2003, a tornado severely damaged the home, which the wife occupied at the time. The insurance company refused to cover the damage. The wife subsequently filed a lawsuit against her husband, the insurance company, the local agent, and others. The agent and the insurance company moved for summary judgment, which the trial court granted. We affirm the trial court’s grant of summary judgment to the agent. We reverse the trial court’s grant of summary judgment to the insurance company, and we hold that a genuine issue of material fact exists as to whether an insurance policy covered the home on the date of the injury complained of.
Cases posted the week of 09/18/2006
Douglas Martin v. Peggy Sue Martin Moats - M2004-01921-COA-R3-CV View
Davidson County - Mother appeals finding of contempt for failure to make child support payments and argues that the trial court failed to make the requisite finding regarding her ability to pay. Because there was no evidence introduced to show Mother had the ability to pay, we reverse.
Judy Pestell v. Richard A. Pestell - M2005-00749-COA-R3-CV View
Davidson County - The trial court refused father’s request for recovery of child support payments made prior to his petition to modify although the child also received social security disability payments for the period. We affirm.
State, ex. rel., Cindy Burris vs. Billy Murray - E2006-00947-COA-R3-JV View
Roane County - The State of Tennessee, ex. rel., Cindy J. Burris (“the State”) filed a petition for modification of child support against Billy D. Murray (“Father”) in November of 2005. The case was heard by a Referee and the Referee’s Findings and Recommendations were entered in February of 2006, ordering Father to pay $173 per month in current support and $7 per month toward child support arrearages of $10,659.14. Father appealed the Findings and Recommendations to the Juvenile Court and the Juvenile Court entered an order confirming the Findings and Recommendations. Father appeals to this Court. The record on appeal contains no transcript or statement of the evidence. We vacate that portion of the award that represents State benefits received by Cindy J. Burris (“Mother”) after the entry of the 1992 judgment and affirm as to all remaining issues.
Harper-Wittbrodt Automotive Group v. Sam Teague, et al. - M2005-00203-COA-R3-CV View
Dickson County - This is an appeal from the granting of specific performance pursuant to an option to purchase contained in a lease agreement between Sam Teague and Sam Teague Chrysler, Inc., and the predecessor in interest of Harper-Wittbrodt Automotive Group, LLC. Each of the parties have made numerous assignments of error with respect to the ruling of the trial court and the relief granted by it. After consideration of each of the issues raised by the parties, we affirm, in all respects, the judgment of the trial court.
Marcie Begley vs. Stephen B. Wlodarz - E2005-01453-COA-R3-CV View
Hawkins County - In this wrongful death action, the issue presented is whether an uncertified copy of the Defendant’s guilty plea to murder is sufficient to support a grant of summary judgment to the Plaintiff. Marcie Begley’s father, Gerald Gibson, was a sheriff’s deputy who was killed in the line of duty. Stephen Wlodarz was sued for the wrongful death of Mr. Gibson. Ms. Begley filed a motion for summary judgment asserting that Mr. Wlodarz pleaded guilty to the murder of Gerald Gibson and should, therefore, be estopped from denying responsibility for her father’s death. The motion was not supported by an affidavit, but only by an uncertified copy of Mr. Wlodarz’s guilty plea. The plea agreement indicated that Mr. Wlodarz pleaded guilty to first-degree murder; however, the document failed to identify the murder victim. The trial court granted Ms. Begley’s motion for summary judgment and awarded her one million dollars in compensatory damages. Mr. Wlodarz appeals. After careful review, we hold that an uncertified copy of a plea agreement is inadmissible evidence and should not have been considered by the trial court for purposes of the summary judgment motion. Because Ms. Begley submitted no additional evidence to support her motion, we hold that the trial court erred in granting summary judgment to Ms. Begley. We reverse the decision of the trial court and remand.
Cases posted the week of 09/11/2006
Dept of Children's Srvcs. vs. P.M.T., et al - E2006-00057-COA-R3-PT View
Hamilton County - The trial court terminated the parental rights of P.M.T. (“Mother”) and J.L.T., Sr. (“Father”) with respect to their minor child, J.L.T., Jr. (“the child”) (DOB: May 9, 2002), upon finding, by clear and convincing evidence, that grounds for terminating their parental rights existed and that termination was in the best interest of the child. Mother and Father appeal. We affirm.
In Re: C. S., Jr., T. M. S., J. W. S., Z. J. S., K. S. S., and R. F. S. - M2005-02499-COA-R3-PT View
Bedford County - This is a termination of parental rights case. In 2003, the biological mother of the six children at issue in this case abandoned the children and left them with their paternal grandmother. The next day, the mother was arrested for abandonment and failure to protect the children from abuse by a former boyfriend. The children were taken into state custody and placed in foster homes. Over the course of the next two years, three permanency plans were put in place for the children. All of the plans required the mother to, among other things, obtain a legally-derived means of income sufficient to support her children and obtain safe and stable housing. In February 2005, after being released from four months of incarceration for two DUIs, the mother moved to Missouri. She lived in three different places in Missouri and did not inform DCS of her changes in address. After the mother moved to Missouri, she did not visit the children, did not obtain independent housing, and worked only part-time, minimum-wage jobs. The State filed a petition to terminate the mother’s rights based on abandonment, failure to comply with the permanency plans, and persistent conditions. After a trial, the trial court terminated the mother’s parental rights based on all three grounds. The mother now appeals. We affirm, finding that the evidence fully supports the trial court’s finding on at least one ground and as to the best interest of the children.
Wade D. Harley, et al. v. Barry Harrison - M2005-02099-COA-R3-CV View
Williamson County - This is a breach of contract case regarding a dispute that has been on-going since 1995. On August 30, 1994, the plaintiffs contracted with the defendant for the construction of a new home, to be built around an existing nineteenth century house which was to be partially dismantled and utilized in the construction. After many months of construction, the plaintiffs terminated the contract and filed a complaint which sought, among other relief, a writ of possession for various “house parts” of the nineteenth century home which the defendant was wrongfully withholding and for which he had filed a Mechanics’ and Materialmen’s Lien. The defendant answered, filed a counter claim and eventually amended the Lien to increase the amount. On August 8, 2005, the trial court entered judgment ordering the removal of the defendant’s lien and awarding plaintiffs $149,337.00. The defendant appeals. We affirm the judgment of the trial court.
Ronnie Lyn Christ v. Kery N. Homonai - W2006-00352-COA-R3-JV View
Shelby County - This appeal involves a dispute over a non-marital child's surname. Father/Appellant filed a petition in the Juvenile Court of Shelby County, seeking to legitimate his son and to give him his surname. Following a bench trial, the juvenile court legitimated the child, and directed that the child's surname be changed to a hyphenated surname consisting of Mother’s maiden name and Father’s surname. Father/Appellant appeals. We reverse the trial court’s finding concerning the child’s surname and remand for further proceedings consistent with T.C.A. 27-3-128 and this Opinion.
Marje Largin, et al. v. Williamson County Animal Control Shelter, et al. - M2005-01255-COA-R3-CV View
Williamson County - The plaintiffs filed this conversion and negligent bailment action against Williamson County and the County’s Animal Control Shelter, alleging the defendants failed and/or refused to return animals and accessory equipment owned by the plaintiffs. The County filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss, contending the complaint did not allege the tort was committed by an employee of the County acting within the scope of employment as required by the Governmental Tort Liability Act. The trial court granted the motion to dismiss and denied the plaintiffs’ last minute motion to amend the complaint, finding the proposed amended complaint would not cure the deficiencies. Finding no error, we affirm.
Nashville Education Assoc. et al. v. Board of Education - M2005-00747-COA-R3-CV View
(Dissent) - View
Davidson County - The trial court awarded summary judgment to Defendant Board of Education, vacating a portion of an arbitration award that required reinstatement of Plaintiff to his high school coaching assignment. We reverse.
Christy Barrentine v. Timothy Barrentine - W2005-02082-COA-R3-CV View
Shelby County - This appeal stems from a divorce. In this appeal, the husband asserts that the circuit court erred when it (1) awarded his wife transitional alimony in the amount of $4,000 per month for the first four years and $1,000 per month for the next five years, (2) assigned 100% of the parties’ marital debts to him, and (3) allocated $650 for his wife’s work related child care expenses when calculating the parties’ child support obligations. Husband argues that the amount of transitional alimony was excessive as he did not have the ability to pay that amount and that the amount exceeded his wife’s needs. He also argues that the circuit court should have equitably distributed the parties’ marital debts and that the circuit court should not have allocated work related child care expenses in excess of his wife’s monthly gross income. Additionally, the wife has requested that this Court award her attorney’s fees on appeal. We affirm as modified the decisions of the circuit court. We decline to award the wife her attorney’s fees on appeal.
Libbi McCullough, et al. v. Inez Silverfield, et al. - M2005-01751-COA-R3-CV View
Davidson County - Libbi D. McCullough, Jessee Lee Jones, and Honky Tonk, Inc. d/b/a Roberts Western World (“Plaintiffs”) sued Inez Silverfield, Timothy Steve Smith, and Al Ross (“Defendants”) claiming, in part, that Ms. Silverfield had breached a contractual right of first refusal when she sold real property located at 416 Broadway in Nashville, Tennessee (“416 Broadway”) to Mr. Smith and Mr. Ross. Plaintiffs moved for summary judgment on the breach of contract claim. The Trial Court granted Plaintiffs’ motion for partial summary judgment, ordered specific performance pursuant to the contractual right of first refusal, and granted Plaintiffs’ motion for entry of a final judgment pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. Mr. Smith and Mr. Ross appeal. We affirm.
Theresa Godbee v. Robert M. Dimick - M2005-01299-COA-R3-CV View
Davidson County - Patient filed a medical malpractice claim against an orthopedic surgeon for his alleged negligence in her diagnosis and spinal surgery. After a three week trial, the jury rendered a verdict in favor of the physician. The patient appealed, claiming that she was entitled to a new trial because the trial court erred with regard to several evidentiary rulings, its communications with the jurors, its jury instructions and verdict form, and its decision to permit the jury to examine medical articles used in cross-examination. We have determined that the judgment must be reversed and the case remanded for a new trial.
Debra Owens v. Shelby County - W2005-02083-COA-R3-CV View
Shelby County - This is a lawsuit for on-the-job injury benefits. The plaintiff was employed as a jailer for the defendant county government. She injured her back in a slip-and-fall accident which occurred during the scope of her employment. The county paid her on-the-job injury benefits while she was being treated for her injuries. After about two months, her treating physician released her from his care, stated that she had no permanent anatomical disability, and determined that she was capable of unrestricted work. The county stopped paying her on-the-job injury benefits and she returned to full-duty work. Later, complaining of continued back pain, the plaintiff saw another physician. This physician opined that the plaintiff had a 6% permanent disability to her body as a whole as a direct result of the slip-and-fall accident. The plaintiff filed this lawsuit for further benefits under the county’s OJI policy. After a trial, the trial court found that the plaintiff did not have a permanent vocational disability and held in favor of the county. The plaintiff now appeals. We affirm, concluding that there is no reason to reject the trial court’s determinations of credibility and that the evidence does not preponderate against the trial court’s decision.
John P. Konvalinka vs. Erlanger Hospital - E2006-00064-COA-R3-CV View
Hamitlon County - This appeal involves a public records request made to the Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Hospital (“Erlanger”) by John Konvalinka (“Konvalinka”), an attorney who practices law in Chattanooga. In a related case, we granted a Tenn. R. App. P. 9 interlocutory appeal filed by Alexander Stratienko, M.D. (“Stratienko”) on the limited issue of whether the medical credentials of another physician were protected from disclosure by the Peer Review Statute. Konvalinka represents Stratienko in that related proceeding. We entered an order in the Stratienko appeal staying all proceedings below pending our decision on the merits of that appeal. While our stay was in effect, Konvalinka filed the present lawsuit, which is a petition for access to public records in the possession of Erlanger. The Chancery Court determined that all but two groups of the requested documents were covered by our stay in the Stratienko case and denied the petition as to all of the remaining documents because of our stay. Konvalinka appeals. We affirm in part, reverse in part, and remand for further proceedings.
Steve Mairose, et al. v. Federal Express - W2005-01527-COA-R3-CV View
Shelby County - This is the second time this case has been on appeal. This case stems from an alleged breach of an employment contract between an employer and its employees. In this appeal, we are asked to determine (1) whether the chancery court erred when it dismissed eight of the ten plaintiffs from the appeal as they had not perfected an appeal to the trial court’s judgment notwithstanding the verdict that was reversed on appeal; (2) whether the chancery court erred when it found that the employer had not breached its contract when it incorporated an integrated master seniority list that did not “endtail” pilots from another corporation that merged into the employer; (3) whether, assuming that a breach occurred, the employees waived their breach of contract claims by failing to object to the alleged breach in a timely fashion; and (4) whether the chancery court erred when it awarded discretionary costs for court reporter expense for hearings. On appeal, the employees contend that the chancery court erred when it dismissed eight of the ten employees as they had not properly perfected an appeal because the eight employees should be able to benefit from the appellate decision regarding the remaining two employees. The employees also assert that the employer breached their employment contract when it incorporated an integrated seniority list altering their seniority rights and that they had not waived any claim for breach of contract because of their conduct. Finally, the employees contend that the chancery court erred when it awarded discretionary costs for court reporter expenses for hearings as rule 54.04(2) of the Tennessee Rules of Civil Procedure allow for the recovery of court reporter expenses for depositions or trials only. The employer contends that it did not breach the employment contract and that, assuming breach, the employees waived any breach of contract claim because they failed to challenge the arbitration award that established the integrated master seniority list in a timely fashion and that they failed to object to the breach of contract in a timely fashion after the breach. We affirm the decision of the chancery court finding that the employer had not breached its employee contract with its employees and affirm the decision of the chancery court dismissing eight of the ten employees from the new trial as they had not properly perfected an appeal to the chancery court’s original judgment notwithstanding the verdict. Further, we affirm the chancery court’s award of discretionary costs.
Cases posted the week of 09/04/2006
In the Matter of: D. P. M., S. H. & Y. M. P. - M2005-02183-COA-R3-PT View
Macon County - The Department of Children’s Services petitioned the juvenile court to terminate the parental rights of an illegal immigrant mother to three of her children on multiple grounds. After a hearing, the court granted the petition. We have carefully read the record, and we believe the Department failed to prove by clear and convincing evidence that it was in the best interest of the children that their mother’s parental rights be terminated. We accordingly reverse.
Dawn Nepp, et al. v. Margaret Hart, et al. - M2005-02024-COA-R3-CV View
Williamson County - This is an appeal of a judgment on a jury verdict. Plaintiffs- homeowners contracted with a construction company, a corporation wholly owned by a single stockholder, to construct their residence. Because of alleged breach of contract and negligent construction, the homeowners filed suit against the corporation and also the sole stockholder and his wife, a director, alleging that they were in fact the alter egos of the corporation. Prior to trial, the corporation was voluntarily dismissed by the homeowners, and the case was tried against the individual defendants on the alter ego theory. The jury found that owner-defendants were liable under the alter ego theory for negligent construction and breach of contract. Judgment was entered on the jury verdict. Plaintiffs-homeowners appealed stating that the trial court erred in dismissing some of the other causes of action, but a review of the record reveals that no motion for a new trial was filed by plaintiffs-homeowners as required by Tenn. R. App. P. 3 (e), and thus those issues are waived. The individual defendants asserted affirmative issues for review as cross appellants. Although the individual defendants filed a motion for a new trial, many of the issues raised were not specifically stated therein and are consequently considered waived on appeal by virtue of Tenn. R. App. P. 3 (e). Finding that there is material evidence to support the jury verdict, we affirm.
Judith Sellers vs. Gary Sellers - E2005-02867-COA-R3-CV View
Hamilton County - When the parties were divorced in 2000, Mrs. Sellers was not awarded any alimony, but was awarded $900 per month from Mr. Sellers’s military retirement benefits as a division of marital property. Mr. Sellers made the payments directly to Mrs. Sellers and later the payments were made to her by the Department of Defense. Subsequently, Mr. Sellers’s military disability benefits were increased, and his retirement benefits were decreased, which resulted in Mrs. Sellers’s monthly payment from the Department of Defense being lowered from $900 to $90. Mrs. Sellers filed a contempt petition alleging that Mr. Sellers had modified his retirement benefit program in an attempt to defraud her of alimony and requesting that Mr. Sellers be ordered to pay back alimony payments. The trial court granted Mrs. Sellers a judgment for unpaid alimony, attorney’s fees and directed that Mr. Sellers make future alimony payments directly to her. The trial court later vacated this order and set a hearing on Mrs. Sellers’s petition for contempt. Upon rehearing, the trial court denied Mrs. Sellers’s petition for contempt and declared its prior order holding Mr. Sellers in contempt to be null and void. Mrs. Sellers appeals, arguing that the trial court erred in setting aside its order granting her petition for contempt and in failing to award her alimony in an amount to compensate for the diminishment in the monthly payments she had received from Mr. Sellers’s retirement benefits. We hold that the trial court did not err in setting aside its order of contempt because the order had no basis in law or fact. Because Mr. Sellers was never under an obligation to pay Mrs. Sellers alimony, he cannot be liable for an alimony arrearage or held in contempt of court for nonpayment. Further, because Mrs. Sellers was not awarded any alimony in the divorce decree, the trial court had no authority to subsequently modify the decree to award alimony. We affirm the decision of the trial court.
Annesia W. Jarrett v. Eric D. Cross - W2005-00979-COA-R3-CV View
Madison County - This is a child support modification case. The trial court determined Father was capable of earning $30,000 per year. Mother appeals, contending Father’s life-style evidences a greater income. We affirm.
Thomas Anderson vs. Dimple Mae Anderson - E2005-02110-COA-R3-CV View
Monroe County- The Trial Court granted the parties a divorce, denied wife alimony, and divided the marital property. The wife takes issue with the Judge’s valuations and his refusal to award alimony. We affirm, but modify the property settlement.
Barney Newcomb v. Kohler Company - W2005-02161-COA-R3-CV View
Obion County - In April 2003, the plaintiff’s employer terminated his employment. The employer, citing the company’s respectful workplace policy, fired the employee for allegedly cursing a fellow employee. The employee subsequently filed suit against the employer for retaliatory discharge. The employee alleged that his prior workers’ compensation claims were the real reason that his employer terminated his employment. In his complaint, the employee sought compensatory and punitive damages, but did not set forth the amount requested. After the jury trial got underway, the trial court allowed the employee to amend his complaint to request a specific amount of damages for back pay and front pay, but ultimately dismissed the claim for punitive damages. At the conclusion of the employee’s case-in-chief, the employer moved for a directed verdict, which the trial court denied. At the close of the employer’s proof, the jury returned a verdict in favor of the employee finding that his workers’ compensation benefits were a substantial factor in the employer’s decision to terminate his employment. At the end of trial, the trial court conducted a hearing on the issue of whether to award reinstatement or front pay to the employee. After hearing evidence on the issue, the trial court ordered the employer to pay front pay since reinstatement was not warranted under the facts of the case. The employer presented numerous issues related to the jury trial in its motion for a new trial, which the trial court denied. On appeal, the employer asks us to review (1) the trial court’s decision to allow the employee to amend his complaint during the trial; (2) the trial court’s decisions regarding the admissibility of certain evidence; (3) the trial court’s decision to deny the employer’s motion for a directed verdict; (4) the trial court’s rejection of the employer’s proposed jury instructions; (5) the trial court’s decision to affirm the jury’s verdict while acting as thirteenth juror; and (6) the trial court’s award of front pay in lieu of reinstatement. We affirm the trial court’s rulings on the various issues raised by the employer on appeal.
Cases posted the week of 08/28/2006
Vicki Lynn Fox v. Terry Wayne Fox - M2004-02616-COA-R3-CV View
(Concur) - View
Putnam County - This appeal involves the financial aspects of the dissolution of a marriage that lasted approximately ten years. Both parties sought a divorce in the Chancery Court for Putnam County. Following a bench trial, the trial court granted the wife a divorce and approved a permanent parenting plan designating her as primary residential parent for the parties’ two children. In addition, the trial court classified the parties’ assets, divided the marital estate, reduced the husband’s alimony arrearage to a judgment for alimony in solido, and ordered the husband to pay the wife $350 per month in long-term alimony. The husband takes issue on this appeal with the manner in which the trial court classified the parties’ assets and divided the marital estate and with the trial court’s decision to require him to pay long-term alimony. We have determined that the trial court erred in its classification of the parties’ property. However, we find that the evidence fully supports the manner in which the trial court divided the parties’ marital estate, as well as the trial court’s decision to award the wife long-term alimony.
Irvin Eugene Murr v. Angeline J. Murr - M2005-01377-COA-R3-CV View
Giles County - In this appeal, Mother challenges the trial court’s designation of Father as primary residential parent of the parties’ only child after the termination of a two and a half year marriage. The judgment of the trial court is affirmed.
Charlotte McCall v. National Health Corp., et al. - M2004-00261-COA-R3-CV View
Rutherford County - This case concerns the right of an employee injured under circumstances entitling her to workers’ compensation benefits to file a common law tort action against a supervisor, whose actions caused the injury. The trial court concluded that employee’s right to sue her supervisor for his allegedly tortious conduct was barred under the exclusive remedy doctrine of the Tennessee Workers’ Compensation Law. The judgment of the trial court is reversed in part, affirmed in part, and remanded to the trial court for further proceedings.
Auto Credit of Nashville v. Melissa Wimmer - M2005-00978-COA-R3-CV View
(Dissent) - View
Sumner County - A woman bought a used automobile, financing the purchase with a loan from the plaintiff credit company. The loan was secured through a UCC Article 9 security interest in the vehicle. When the buyer fell behind in her payments, the creditor repossessed the car and sent her notice by certified mail that it intended to sell the car and that she would face a deficiency judgment if the sale price was less than the amount she still owed. She did not receive the notice, and the certified letter was returned unclaimed to the creditor the day after the sale. The creditor sued for a deficiency of over $3,400, and the circuit court granted it judgment for the amount claimed. The buyer sought statutory damages under Tenn. Code Ann. § 47-9-625 arguing that the attempted notice was inadequate, and the trial court dismissed her counterclaim. The buyer appeals this dismissal. We reverse the trial court because we find Auto Credit did not act reasonably in proceeding to sell the car without affirming that the notice had in fact been delivered.
Clifford Aslinger vs. Kenneth R. Price, et al - E2006-00029-COA-R3-CV View
Hamilton County - This is an action for specific performance under a contract for sale of approximately 3.31 acres of real estate. Clifford Aslinger contracted to purchase the 3.31 acres from Geoffrey Giesemann, who was acting on behalf of his father’s estate. Subsequently, Mr. Giesemann, acting for the estate, sold a larger tract of real estate that included the 3.31 acres to Kenneth T. Price. Mr. Giesemann thought that the agreement with Mr. Price included Mr. Price’s assent to convey the 3.31 acres to Mr. Aslinger. When Mr. Price refused to sell, Mr. Aslinger sued for specific performance. The trial court held that the contract between Mr. Aslinger and the Giesemann estate was valid, and that Mr. Price was on inquiry notice of the existence of the prior contract, but declined to order Mr. Price to sell the 3.31 acres to Mr. Aslinger because Mr. Price did not assent to sell it to Mr. Aslinger as part of his agreement with Mr. Giesemann and the estate. We find the evidence does not preponderate against the trial court’s factual findings, but based on these findings, we hold that Mr. Price was not a bona fide purchaser without notice, and therefore took the deed from the Giesemann estate subject to Mr. Aslinger’s prior interest. We further find that the evidence preponderates against the trial court’s award of $4,700 to Mr. Aslinger against Mr. Price based on its finding of unjust enrichment. We therefore reverse the trial court’s monetary award to Mr. Aslinger and remand for entry of an order requiring Mr. Price to transfer the 3.31 acres to Mr. Aslinger at a price of $4,000 per acre. We affirm the trial court’s judgment declining to award either party attorney’s fees.
Billy R. Inmon vs. Brett Hadley, et al - E2005-00834-COA-R3-CV View
Jefferson County - Brett Hadley and Tammy Hadley (“the Lessees”) entered into a lease-to-purchase agreement with an owner of property, Billy R. Inmon (“the Lessor”). The agreement pertains to the Mountain Harbor Inn located in Dandridge. It was for a period of 15 years. After operating the Inn for approximately three years, the Lessees defaulted. The Lessor filed a detainer warrant against the Lessees seeking past due rent and possession of the property. The Jefferson County General Sessions Court granted the Lessor possession of the property and a judgment for $26,399.60. The Lessees appealed to the Jefferson County Circuit Court and posted an appeal bond in the amount of $51,000.00. The appeal was dismissed because the bond was deemed insufficient. After the case was remanded to the general sessions court, the Lessees posted a cash bond in the amount of $20,250.00 after filing a petition for writ of certiorari and supersedeas to the circuit court. The $20,250.00 was loaned to the Lessees by David Cooper. The circuit court refused to issue the writ. After the Lessor filed a second lawsuit and was awarded an additional judgment of $31,187.25 for past due rent, the circuit court ordered disbursement of the $71,250.00, bond and cash being held by the court, with the Lessor receiving $57,586.85 of the total amount on deposit. David Cooper was allowed to intervene in the lawsuit and Cooper and the Lessees sought to have the $20,250.00 loaned by Cooper returned to him. The circuit court refused. The Lessees and Cooper appeal. We affirm.
In Re: C. A. R. - M2005-02286-COA-R3-CV View
Wilson County - In this domestic litigation regarding visitation, contempt and custody, the mother of the parties’ only child contends inter alia the trial court erred by not transferring the case to Davidson County pursuant to Tenn. Code Ann. § 36-5-3003 and the evidence preponderates against the finding it was in the best interests of the child to change custody. We have determined the evidence preponderates against the trial court’s pivotal findings and the conclusions based thereon. We have also determined that none of the parties have resided in Wilson County during the pendency of this litigation; therefore, as the mother has requested, the case should be transferred to Davidson County pursuant to Tenn. Code Ann. 36-5-3003.
Louise Spann, et al. v. American Express Travel, et al. - M2004-02786-COA-R3-CV View
Williamson County - This appeal involves a dispute between a credit and charge card issuer and two cardholders regarding allegedly unauthorized charges to their accounts by entities affiliated with the issuer. The cardholders filed a class action complaint in the Circuit Court for Williamson County asserting that the practice of charging them for goods and services they did not agree to purchase constituted an unfair and deceptive trade practice prohibited by various state consumer protection laws and gave rise to causes of action for negligent and fraudulent misrepresentation, conversion, and unjust enrichment. The issuer and its affiliates filed a motion to compel separate arbitrations against each cardholder in accordance with the class arbitration waiver clause of the arbitration provision in the cardmember agreements. The cardholders conceded that they were required to arbitrate their claims but asked the trial court to strike the class arbitration waiver clause as unconscionable. Siding with the cardholders, the trial court struck the class arbitration waiver clause and granted the motion to compel arbitration. The issuer and its affiliates appealed. We have concluded that the trial court did not err by granting the motion to compel arbitration. However, we have also concluded that the trial court erred by finding the class arbitration waiver clause unconscionable under Utah law.
Jeff Ragsdale, et al. v. Jerry Deering, II, et al. - M2004-00672-COA-R9-CV View
Robertson County- The defendant deliberately rammed the company truck he was driving into the plaintiffs’ pickup truck, severely injuring the occupant driver and passenger. The plaintiffs sued the truck driver and his employer. They also served the complaint on the injured driver’s own insurance carrier, pursuant to Tenn. Code Ann. § 56-7-1206, to protect their right of recovery in the event that the defendants were found to be uninsured or underinsured. The defendant truck driver’s liability carrier subsequently denied coverage to him under a policy exclusion for intentional acts. The injured driver’s uninsured motorist insurance carrier then filed a motion for summary judgment asking the trial court to rule that the plaintiffs were not entitled to uninsured motorist coverage under the insurance contract. The trial court denied the insurance company’s motion, and we granted an interlocutory appeal. We affirm the trial court.
Sarah Sloan v. National HealthCorp, et al. - M2005-01273-COA-R3-CV View
Robertson County- This is an arbitration dispute. The plaintiff’s deceased husband had been a resident at the defendant nursing home. The plaintiff, individually and as a surviving spouse, filed a tort and wrongful death lawsuit against the defendant nursing home. The answer filed by the defendant nursing home company asserted that the plaintiff’s claims were subject to binding arbitration. The answer also included a demand for a jury. After engaging in four months of discovery, the defendants filed a motion to compel arbitration. The trial court denied this motion, ruling that the defendants could not, pursuant to Rule 38 of the Tennessee Rules of Civil Procedure, withdraw their jury demand without the consent of the plaintiff and were therefore precluded from seeking arbitration. The defendants appeal this order. We reverse, holding that a defendant may assert that a dispute must be arbitrated and, in the alternative, demand a jury, without losing its right to arbitration.
Leonard Frazier v. Donal Campbell, et al. - W2006-00031-COA-R3-CV View
Shelby County - This appeal involves a petition for writ of certiorari filed by a state prisoner. After drugs were discovered in the inmate’s incoming mail, he was sentenced to punitive segregation. He sought review of his conviction in the Shelby County Chancery Court, which later dismissed his case without prejudice for lack of prosecution. The inmate filed a notice of appeal which we have determined was untimely and therefore a nullity. As a result, we must dismiss this appeal without considering the issues presented by the Petitioner.
Alvin King v. Shelby County Civil Service Merit Board - W2006-01079-COA-R3-CV View
Shelby County - Employment of a Shelby County Deputy Sheriff was terminated and the decision was upheld by the Shelby County Civil Service Merit Board. The employee filed a petition for writ of certiorari in the Chancery Court of Shelby County. The administrative record was duly filed in the trial court. Subsequently, the chancery court entered an order denying writ of certiorari. We vacate the trial court’s order and remand for further proceedings.
In Re: The Estate of Marjorie Brevard, et al vs. Dorothy Brevard, et al - E2005-01378-COA-R3-CV View
Sevier County - The Trial Court granted contestants of a Will summary judgment, voiding the Will. On appeal, we vacate the summary judgment.
Stephen Krupp v. Maura Cunningham-Grogan - M2005-01098-COA-R3-CV View
Williamson County - This appeal involves the custody and visitation rights of the parents of a fifteen-year-old girl. The parents were already divorced by the time they moved to Tennessee. The mother was the primary residential parent, but the parties had informally agreed that the father would have more overnight visitation than was required by the Florida court’s custody and visitation order. After the parents’ relationship deteriorated in late 2003, the father filed a petition in the Circuit Court for Williamson County requesting that he be designated the child’s primary residential parent. The mother responded by requesting that the father’s visitation be reduced and that she be given sole decision-making authority over the child’s religious upbringing and non-emergency healthcare. The trial court, sitting without a jury, dismissed the father’s petition and granted the mother’s counter-petition. The father appealed. We have concluded that the trial court properly found that there has been a material change in circumstance since the entry of the Florida custody order but that it is not in the child’s best interests to modify the Florida court’s custody and visitation arrangement other than to increase the father’s summer visitation from three weeks to four and to vest final decision-making authority over the child’s non-emergency healthcare and religious upbringing with the mother.
John Lykins, et al vs. Key Bank, et al - E2005-01572-COA-R3-CV View
Washington County - John Lykins and Cathy Lykins (“the plaintiffs”) entered into a lease-to-purchase agreement for real property owned by Martha Sadler. The plaintiffs took possession of a house on the property and began making Sadler’s mortgage payments to the defendant Key Bank, USA, NA (“the bank”). Later, Martha Sadler died. Thereafter, the plaintiffs had discussions with the administratrix of Sadler’s estate. They reached an understanding with her regarding the property. The plaintiffs claim that when they tried to secure financing to purchase the property, they were informed that Sadler owed the bank more than the administratrix had indicated. The plaintiffs ceased making payments in October, 2003. While they were attempting to ascertain exactly how much was owed on the mortgage, the bank initiated foreclosure proceedings and sold the house. The plaintiffs filed suit and obtained an injunction prohibiting the bank from evicting the plaintiffs pending a hearing. Approximately 11 months later, the trial court dismissed the plaintiffs’ complaint with prejudice based upon a finding that the plaintiffs had failed to respond to discovery requests and had failed to prosecute their action. The plaintiffs appeal. We affirm.
Estate of Irene Dooley, et al vs. Renee Hickman - E2005-02322-COA-R3-CV View
Rhea County - Following the death of Irene C. Dooley (“the decedent”), the co-executors of her estate filed this petition against the decedent’s attorney in fact, Renee Hickman (“the respondent”). The estate’s petition seeks an accounting for all monies received by the respondent from the decedent’s accounts and the reimbursement of any money found to have been wrongfully received by the respondent. Particularly at issue is a $21,000 check written by the respondent on the decedent’s account and cashed by the respondent for her personal benefit. The respondent claims that the decedent instructed her to write the check and to take the money as payment for her services. The trial court ruled that the Dead Man’s Statute (“the Statute”) precluded the respondent from testifying with respect to this alleged conversation with the decedent. At the hearing below, the estate called the respondent as a witness and inquired into what was done with the proceeds of the $21,000 check. After answering the estate’s questions on the subject, the respondent raised an objection, arguing, as she does on this appeal, that the estate waived the application of the Statute by calling her as a witness and by specifically soliciting testimony regarding the disposition of the proceeds from the $21,000 check. The trial court held that the limited scope of the estate’s questioning did not constitute a waiver of the restrictions of the Statute. In its judgment, the trial court ordered the respondent to reimburse the estate for the $21,000. The respondent appeals. We affirm.
Linda Hensley vs. Johnny Hensley - E2005-02735-COA-R3-CV View
Greene County - The issues presented in this divorce case are whether the evidence preponderates against the trial court's award to Wife for her contribution to the appreciation and preservation of Husband's separate real property; whether the trial court erred in awarding Wife transitional alimony; and whether the trial court erred in awarding Wife attorney's fees. The Wife raises the additional issue of whether certain property classified by the trial court as Husband’s separate property should have been classified as marital. We affirm the judgment of the trial court in all respects.
Jessie Vittetoe vs. Johnny Vittetoe - E2005-02149-COA-R3-CV View
Union County - This appeal involves a post-divorce dispute between the parents of three minor children. A year after the parties were divorced, the noncustodial father petitioned to modify the final decree to reduce his child support payment, to relieve him from the obligation to reimburse the mother for the children’s health insurance premiums, and to claim the children as exemptions on his federal tax return. After a hearing, the chancellor found that there had been no material and substantial change in circumstances and denied the father’s requests to modify the decree regarding child support and health insurance premiums, but modified the decree to grant the father the right to claim one child as a tax exemption every year and to claim one child in alternating years. After careful review of the evidence and the applicable law, we hold that because the chancellor found no material and substantial change in father’s circumstances, he erred in modifying the final decree of divorce as to the income tax dependency exemptions. Accordingly, we reverse and vacate the decision of the chancellor.
Stephanie Hartman vs. Daryl Hartman - E2005-02717-COA-R3-CV View
Rhea County - In this post-divorce proceeding, Daryl O’Brien Hartman (“Father”) and Stephanie Ann Thurman Wallace, formerly Hartman (“Mother”), sought to modify the parties’ residential schedule pertaining to their children. That schedule, which was a part of the parties’ Marital Dissolution Agreement (“the MDA”), provided that Grayson McKenna Hartman and McKenzie Daryl Emerson Hartman (collectively “the children”) would reside with Father in Rhea County during the time Mother was working in Atlanta. The MDA stipulated that when Mother was not working in Atlanta, she would have custody of the children. Two years after the divorce, Father filed a petition seeking primary custody, alleging that, contrary to the contemplation of the parties at the time of the divorce, Mother had failed to return to Tennessee and assume equal parenting time with the children. Father also requested that Mother be required to pay child support. Mother responded by filing a counterclaim seeking a modification of the custody arrangement. She alleged that Father’s excessive drinking and lack of steady employment justified a modification. The trial court awarded Father custody, a judgment which we later vacated. This case was remanded back to the trial court with instructions to conduct a hearing on the comparative fitness of the parents. After a hearing, the trial court again awarded primary custody to Father. Mother appeals, arguing (1) that the trial court abused its discretion in concluding that Father was the more fit parent; and (2) that the trial court unreasonably delayed the proceedings that followed this Court’s remand. We affirm.
John Shealy, et al vs. Policy Studies, Inc., et al - E2005-01124-COA-R3-CV View
Bradley County - In two separate and unrelated divorce cases, the plaintiffs in the instant case – John Michael Shealy and David Lebron Reagan – were each paying child support to their respective former spouses as required by court orders. Pursuant to the provisions of Tenn. Code Ann. § 36-5-103(f), certain child support orders in Tennessee are subject to review by the Department of Human Services (“DHS”) at least once every three years. When the plaintiffs’ child support orders were reviewed in accordance with the statute, DHS issued administrative orders in each case summarily increasing the amount of the plaintiffs’ child support obligations and implementing wage assignments. The plaintiffs then “joined forces” and filed this action challenging the constitutionality of Tenn. Code Ann. §§ 36-5-103(f) and 36-5-501 on the basis that these statutes violate both due process and the separation of powers doctrine. The plaintiffs successfully obtained a restraining order enjoining enforcement of the administrative orders. Thereafter, the plaintiffs’ former wives filed petitions in their respective divorce proceedings seeking an increase in child support. The petitions were eventually resolved by the entry of agreed orders which increased the amount of each of the plaintiffs’ child support payment and decreed payment of same by way of wage assignment. After entry of the agreed court orders, DHS entered administrative orders dismissing all of its previous administrative orders and decreeing that the latter orders were held “for naught.” Tenn. Code Ann. § 36-5-103(f) was substantially amended effective January 1, 2005. On April 21, 2005, the trial court entered an order holding that Tenn. Code Ann. § 36-5-501 and the pre-January 1, 2005, version of § 36-5-103(f) were unconstitutional. DHS appeals. We conclude that all of the plaintiffs’ claims are moot, vacate the judgment of the trial court, and remand with instructions to dismiss this case.
Fletcher Long v. Jessica McAllister-Long - M2005-00072-COA-R3-CV View
Robertson County - This appeal involves a post-divorce criminal contempt petition. Approximately four years after the divorce, the former wife filed a petition in the Chancery Court for Robertson County seeking to hold the former husband in criminal contempt for willfully breaching the provisions in the parties’ marital dissolution agreement requiring him to pay and to indemnify her for certain marital debts. The husband moved to dismiss the petition for failure to allege that he had violated a court order and for failure to comply with Tenn. R. Crim. P. 42(b). The trial court denied the wife’s motion to amend her petition and dismissed the petition because it did not contain an explicit allegation that he had willfully violated a court order. We have determined that the wife’s petition alleges willful violations of the parties’ divorce decree and that it also satisfies all the requirements of Tenn. R. Crim P. 42(b). Therefore, we conclude that the trial court erred by dismissing the wife’s contempt petition.
James McDonnell, et al. v. Conseco Life Ins., et al. - W2005-02630-COA-R3-CV View
Shelby County - Plaintiffs James W. McDonnell, Jr., Faith McDonnell Campbell, Anne McDonnell Durell, and James W. McDonnell, III, appeal the trial court’s grant of summary judgment holding that their causes of action are barred by applicable statutes of limitation. Because we find that the trial court failed to execute a final order disposing of all of Plaintiffs’ asserted causes of action, we dismiss this appeal for lack of subject matter jurisdiction under Rule 3(a) of the Tennessee Rules of Appellate Procedure.
Greg Landaiche, et ux vs. Jerry Jenins, et us, et al - E2005-01357-COA-R3-CV View
Roane County - The Trial Court held that the easement at issue in this case had been abandoned. On appeal, we affirm.
Cases posted the week of 08/21/2006
Columbia Gulf Transmission Co v. Governors Club Property Owners Assoc., et al. - M2005-01193-COA-R3-CV View
Williamson County - The owner of a perpetual natural gas pipeline right-of-way easement filed this Declaratory Judgement action to resolve a dispute with the fee simple owners regarding its right of ingress and egress to replace, upgrade and maintain existing underground pipelines. The trial court declared the rights of the gas company were clearly and unambiguously stated in the grant of easement, that it had the right of ingress and egress stated in the Complaint and enjoined the defendants from obstructing or interfering with those rights. The defendants appeal contending the time and manner of the exercise of the right of easement was ambiguous in the grant, and that the court erred by failing to consider the undue burden on the defendants caused by the time the work was scheduled. Finding no error, we affirm.
Claudia & Scott Henneberry v. John & Mrs. John Simoneaux - M2005-02032-COA-R3-CV View
Williamson County - Plaintiffs sued parents of minor child for damages for injuries caused by minor child. The Trial Court granted summary judgment. We affirm.
George Jerles, et al. v. Margie Phillips, et al. - M2005-01494-COA-R3-CV View
Houston County - This case arises from a foreclosure on real property. The Appellants purchased the property from Appellees. Appellees financed the property and the parties executed a promissory note and deed of trust. The Appellants fell behind on their payments and the Appellees accelerated the debt pursuant to the terms of the Note, and ultimately foreclosed on the property. The Appellants filed suit for, inter alia, wrongful foreclosure. The trial court granted partial summary judgment in favor of Appellees, and denied Appellants’ Tenn. R. Civ. P. 59.04 motion to alter or amend the judgment. Upon disposal of all other claims, the Judgment became final. Appellants appeal. We affirm.
Kenneth Jones v. Heather Taylor v. Leland & Joy Hattabaugh - M2005-02772-COA-R10-CV View
Coffee County - This is a child custody dispute arising out of a divorce. The father filed a divorce petition in a Tennessee court seeking a divorce and full custody of the parties’ child. The same day, the child’s maternal grandparents filed a petition in an Indiana court seeking to be designated as temporary guardians of the child. Within a few days of the filing of the divorce action, the Tennessee court issued an injunction, enjoining the mother from interfering with the father’s custody of the child. Eleven days later, the Indiana court entered an order granting the grandparents’ petition for temporary guardianship. Subsequently, the grandparents filed a petition to intervene in the Tennessee divorce proceedings, seeking to have the custody dispute between mother and father dismissed on the basis that the Tennessee court lacked subject matter jurisdiction, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act. The Tennessee court denied the grandparents’ motion to dismiss, holding that it had jurisdiction to decide the custody issue. We affirm, finding that, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, the Tennessee court had exclusive, continuing jurisdiction over the child custody dispute.
William Thurlby vs. Sevier County, et al - E2005-01328-COA-R3-CV View
Sevier County - In this action, plaintiff, acting pro se, alleged certain rights were denied to him by the County and several County officials. The Trial Court granted defendants summary judgment. We affirm.
Sevier County Bank vs. Paymentech Merchant Svcs, Inc., et al - E2005-02420-COA-R3-CV View
Sevier County - Sevier County Bank (“the Bank”) entered into a referral agreement with First USA Merchant Services, Inc. (“First USA”) which provided that the Bank, for a fee, would refer its merchant customers to First USA for credit card processing services. The Bank filed this lawsuit over 7½ years later against First USA’s successor, Paymentech LP, and others. The Bank claimed that Paymentech breached the referral agreement and committed various tortious acts when it began diverting the Bank’s customers to another bank located in Sevier County. The referral agreement contained a forum selection clause stating that any claims relating to or arising from the agreement would be brought in Dallas, Texas. All the defendants filed motions to dismiss pursuant to the forum selection clause. The Trial Court determined that the forum selection clause was valid and the lawsuit should have been filed in Dallas, Texas. Accordingly, the Trial Court dismissed the lawsuit without prejudice. The Bank appeals, and we affirm.
JerryTaylor v. Jackson-Madison County General Hospital District, et al. - W2005-02471-COA-R3-CV View
Madison County - Defendant Jackson-Madison County General Hospital District (“Defendant”) appeals a judgment awarding damage for malpractice to Plaintiff Kay Gneiwek (“Plaintiff”) as administrator of the estate of Jerry Alan Taylor. Defendant raises issues pertaining to the competency of Plaintiff’s expert witness, Dr. Douglas Harkrider, M.D., to provide testimony in this case, and further argues that Dr. Harkrider’s testimony failed to establish proximate causation as required under Section 29-26-115 of the Tennessee Code. We affirm in part and reverse in part.
Charles McRae, et al vs. C.L. Hagaman, Jr., et al - E2005-01470-COA-R3-CV View
Anderson County- This action arises from a sale of real estate. After the sale was completed, the buyers, Charles and Joanna McRae, discovered that a 1.533-acre portion of the property they thought was part of the sale was not included. The McRaes filed this lawsuit against C.L. Hagaman (the seller) and W. Howard Henegar (the real estate broker), alleging that they negligently misrepresented that the disputed tract was part of the sale. After the trial court entered judgment against Mr. Henegar, he appealed. On the first appeal, this Court found substantial evidence of negligence on Mr. McRae’s part, and remanded with instructions to the trial court to apply the principles of comparative negligence. On remand, the trial court found Mr. McRae to be 25% at fault and Mr. Henegar 75% at fault. Mr. Henegar again appeals, arguing that the trial court should have held Mr. McRae’s fault to be at least equal to his own, and thereby should have dismissed the action. We hold that the evidence does not preponderate against the trial court’s determination that Mr. Henegar was 75% at fault in negligently misrepresenting that the disputed tract was included in the sale, and therefore we affirm the judgment of the trial court.
In Re: The Adoption of a Male Child, D.P.E. - E2005-02865-COA-R3-CV View
Knox County - This is a parental termination case. Before trial, the trial court inquired if the parties wanted a guardian ad litem appointed to represent the interests of the minor child. The parties indicated that no guardian ad litem was needed. After a contested hearing, the trial court terminated the parental rights of both parents. The sole issue we address in this appeal is whether the trial court was required to appoint a guardian ad litem for the child when the parties did not request the appointment of one. After careful review, it is our determination that because this was a contested parental termination proceeding, the trial court was required to appoint a guardian ad litem for the minor child pursuant to Tenn. S. Ct. R. 13 §1(d)2(D). This was not a matter that could be waived by the parties. Therefore, we vacate the judgment of the trial court and remand for appointment of a guardian ad litem and a trial on the merits.
Cases posted the week of 08/14/2006
Misty Rose v. Christopher Lashlee - M2005-00361-COA-R3-CV View
Dickson County - This appeal involves the custody and visitation arrangements concerning two adolescent girls. Less than one year after the parents’ divorce, the mother filed a petition in the Chancery Court for Dickson County seeking to modify the permanent parenting plan. The father responded by seeking other modifications in the visitation provisions in the parenting plan. Following a bench trial, the trial court found that a material change in circumstances had occurred and increased the mother’s visitation with the children. The father asserts for the first time on this appeal that no change of circumstances had occurred that was significant enough to warrant a modification of the parenting plan. We have determined that the father cannot take issue with the lack of evidence regarding a material change in circumstances because he failed to raise the issue in the trial court.
David H. Thompson, Jr. v. Terminix International - M2005-02708-COA-R3-CV View
Davidson County - The trial court granted Defendant’s motion to compel arbitration, determined the parties’ agreement was governed by the Federal Arbitration Act, and dismissed Plaintiff’s cause of action. Plaintiff appealed. We reverse dismissal of the action and remand for entry of an order staying the matter pending arbitration. The judgment of the trial court is otherwise affirmed.
Ray Zuzinec vs. Frank Barrett, et al - E2006-00054-COA-R3-CV View
Loudon County - Ray Zuzinec (“Plaintiff”) purchased a house that had recently had the roof replaced, and that roof still was under warranty. The roof was purchased from and installed by the Barrett Company at a total cost of $7,865.00. After shingles began to fall off the roof periodically, Barrett Company patched the roof at no cost to Plaintiff. Barrett Company refused to replace the roof even after one of Barrett Company’s employees allegedly told Plaintiff that the entire roof was installed improperly and needed to be replaced. Plaintiff eventually had the roof recovered at a total cost of $4,000.00. Plaintiff sued Frank Barrett individually and d/b/a the Barrett Company. The Trial Court awarded Plaintiff a judgment for $3,100.00. Defendant appeals. We affirm the judgment of the Trial Court as modified.
State, ex rel. Karen Chunn v. Donnie Coggins - W2005-02231-COA-R3-JV View
Shelby County - This appeal is from an order of the trial court denying Appellant’s motion for a continuance. We affirm.
Tina Kauffman v. Christian Montz - M2003-00448-COA-R3-CV View
Davidson County - This is a post-divorce, child custody case. The order appealed was filed in the trial court January 10, 2005. Mother/Appellant filed her notice of appeal on February 9, 2005, which was timely. On February 10, 2005, thirty one days following the entry of the final judgment in the case, Father/Appellee filed a Tenn.R.Civ.P. 60.02 motion, and on May 11, 2005, filed an amended Rule 60.02 motion. Primarily, the motion and the amended motion rely upon post-judgment facts, but in effect seek an amendment of the trial court’s January 10, 2005 order. By order filed July 29, 2005 and amended order filed August 19, 2005, the trial court ruled upon Father’s Rule 60.02 motion. Because the case was in this Court on appeal, the trial court had no jurisdiction to entertain the Rule 60.02 motion without a remand from this Court. Therefore, the trial court’s order and amended order on the Rule 60.02 motion are vacated. The issues presented on appeal by Mother/Appellant are matters ruled on by the trial court on the Rule 60.02 motion. Therefore, there are no issues that are from the appealed order, and the order appealed is affirmed as modified.
Michael Mosby v. Roland Colson, et al. - W2006-00490-COA-R3-CV View
Lauderdale County - The plaintiff, an inmate in the custody of the Tennessee Department of Correction, filed a pro se lawsuit against numerous prison officials and personnel of the department pursuant to 42 U.S.C. § 1983 in the Circuit Court of Lauderdale County, Tennessee. Therein, the plaintiff complained that prison officials terminated his prison job in retaliation for his filing numerous grievances against them. The plaintiff alleged violations of the United States Constitution, Tennessee statutes, and various policies of the Tennessee Department of Correction. In response, the attorney general, acting on behalf of the defendants, filed a motion to dismiss for failure to state a claim for which relief could be granted. In turn, the plaintiff filed what amount to numerous amended complaints to allege new allegations or to add additional defendants. The trial court subsequently granted the defendants’ motion to dismiss and denied the plaintiff leave to amend his complaint. The trial court also held that the plaintiff could proceed in forma pauperis on appeal. On appeal, the plaintiff asks this Court to review whether the trial court erred in (1) granting the defendants’ motion to dismiss, (2) denying the plaintiff leave to amend his complaint, (3) denying the plaintiff’s request for injunctive relief. The plaintiff also asks this Court to determine whether he should be allowed to proceed in forma pauperis despite the fact that the federal courts previously dismissed three or more of his lawsuits for being frivolous or failing to state a claim. We affirm the trial court’s decisions to grant the defendants’ motion to dismiss and to deny the plaintiff’s request for injunctive relief. While the plaintiff was entitled to file an amended complaint without leave of court, we find no error in the trial court’s refusal to allow the plaintiff to submit his amended complaints. Finally, we hold that his lawsuit should have been dismissed at the trial level pursuant to section 41-21-801 et seq. of the Tennessee Code, which governs lawsuits filed by inmates. Accordingly, we find that the present appeal is so utterly lacking in merit that we remand this case to the trial court for the assessment of all costs, expenses, and fees associated with this lawsuit against the plaintiff in accordance with section 41-21-801 et seq. of the Tennessee Code.
Kimberly Allen, et al. v. John Day, et al. & Gannett Satellite Information Network,
d/b/a The Tennessean, et al. v. Powers Mgt.- M2005-00989-COA-R3-CV View
(Concur) - View
Davidson County A privately-held limited liability company appeals the decision of the trial court which found that the company was the functional equivalent of a government agency in its management of a publically-owned facility thus making its documents subject to the Public Records Act. The judgment of the trial court is affirmed in part, reversed in part and remanded.
Cases posted the week of 08/07/2006
H. Douglas Lane vs. Harry Lane, et al - E2005-01319-COA-R3-CV View
Knox County - In March of 2000, H. Douglas Lane (“Plaintiff”) sued Harry Lane (“Defendant Lane”), E. Ladell McCullough, CPA (“Defendant McCullough”), Henderson, Hutcherson & McCullough, PLLC (“Defendant Accountants”), Harry Lane Nissan, Inc. (“the Dealership”), and Jeffrey E. Cappo (“Defendant Cappo”) claiming, among other things, that the various defendants had conspired to cheat Plaintiff out of his share of the proceeds from the sale of the Dealership and that the defendants’ wrongful conduct had caused Plaintiff serious mental injury. The case was tried without a jury and at the close of Plaintiff’s proof, the defendants moved for an involuntary dismissal. The Trial Court dismissed Plaintiff’s claims against all defendants. Plaintiff appeals to this Court. We affirm.
Andrew Moorehead v. Stacy Fugitt (Moorehead) - W2005-02711-COA-R3-CV View
(Dissent) - View
Henderson County - This is a post-divorce case involving child custody. The parties divorced with an agreed parenting plan for their minor child in which the parties shared equally in residential parenting time and decision-making. When both parties remarried and the child approached school age, the father filed a petition seeking to have the child reside primarily with him. The mother then filed a similar petition. After a comparative fitness analysis, the trial court designated the mother as the primary residential parent. The father now appeals. We affirm, finding that the evidence does not preponderate against the trial court’s decision.
Karen Webb v. Dept of Tourist Development, et al. - M2004-02763-COA-R3-CV View
Davidson County - This appeal involves a state employee in the career service who lost her job in a reduction in force. After her former department created a new position in the executive service that she believed was similar to her former position, the employee filed a grievance asserting that she was entitled to be placed in the new position by virtue of Tenn. Code Ann. § 8-30-320(b) (Supp. 2005). Both the commissioner of the employee’s former department and the Commissioner of Personnel determined that her complaint was not grievable. Thereafter, the employee filed a petition for judicial review under Tenn. Code Ann. § 4-5-322 (2005) in the Chancery Court for Davidson County. The state defendants moved to dismiss the petition for lack of subject matter jurisdiction on the ground that the employee was not appealing from a final decision in a contested case proceeding. The trial court granted the motion, and the employee has appealed. We have determined that the trial court erred by concluding that it lacked subject matter jurisdiction to hear the employee’s petition. However, we have also determined that the employee’s petition fails to state a claim upon which relief can be granted because Tenn. Code Ann. § 8-30-320(b) does not require the State to place laid-off employees in the career service into newly created positions in the executive service.
Jerry T. Troup, Jr., v. Fischer Steel Corp - W2005-00913-COA-R3-CV View
Shelby County -
This is a personal injury action involving comparative fault. At a warehouse construction site, the defendant steel subcontractor cut a hole in the roof of the partially constructed warehouse. A temporary cover was put over the hole. A week later, the plaintiff employee of a roofing subcontractor fell through the hole and sustained serious injuries. The plaintiff received full workers’ compensation benefits from his immediate employer, the roofing subcontractor. Subsequently, the plaintiff filed a personal injury lawsuit against the defendant steel subcontractor. The steel subcontractor then sought to assert fault against the general contractor in charge of the entire warehouse construction project. The steel subcontractor filed a motion in limine to assert fault against the nonparty general contractor. The motion was denied and the case proceeded to a jury trial. At the conclusion of the trial, the jury awarded the plaintiff $546,000. The defendant steel subcontractor now appeals, asserting numerous errors by the trial court, including error in precluding the steel subcontractor from asserting fault against the general contractor. We reverse the trial court’s denial of the motion in limine, vacate the judgment, and remand, finding that the steel subcontractor should have been permitted to assert fault against the general contractor.
State, ex rel. Tommye Working v. Robin Costa, et al. - M2005-02387-COA-R3-CV View
Davidson County - This case involves the determination under pre-existing law of the proper method for transferring the situs of a trust from this state to another state or location. The trial court held that the transfer must be made with court approval pursuant to the provisions of T.C.A. § 35-1-122 which was repealed in 2004. The trustees of the trust, without court approval, transferred the situs of the trust to the State of Mississippi in 1999. The trial court also held that subsequent actions of the trustee in transferring the assets of the trust to a corporation, as authorized by the trust instrument, was invalid. The trustee has appealed. We affirm the order of the trial court granting partial summary judgment to the extent that the statute requires court approval before transferring the situs of the trust. We reverse the order of the trial court granting partial summary judgment to the extent that it voids the trustee’s actions following the attempt to transfer the situs of the trust. Affirmed in part, reversed in part and remanded.
John Campbell v. Sheila Campbell - M2005-00288-COA-R3-CV View
Coffee County- This is an appeal from a divorce action in which the Appellee, Sheila Darlene Campbell (Ms. Campbell), was awarded 73.6 percent of the parties marital property together with alimony in solido in the amount of $500.00 per month for a period of five years. The Appellant, John Wesley Campbell (Mr. Campbell) has appealed both the division of the marital assets and awarding of alimony. Ms. Campbell appeals the refusal of the trial court to require that Mr. Campbell pay her attorneys' fees and alleges the trial court erred in equally dividing the court costs. We modify the judgment of the trial court to delete the requirement that Mr. Campbell pay alimony in solido and affirm the trial court in all other respects.
Shawn Humphrey, et al. v. TomKats, Inc., et al. - M2005-00867-COA-R3-CV View
Davidson County - On this appeal, the Appellant, TomKats, Inc., challenges the propriety of the trial court's awarding Appellee, Shawn Humphrey, judgment for breach of an oral agreement to pay commissions due for sales of sponsorships for an event called Dancin' in the District during the year 1999, failure to pay commissions due on sponsorship and vendor booth revenues pursuant to a written agreement for same event in the year 2000, the subsequent breach of that agreement for the years 2001 and 2002 and dismissal of Appellant's counterclaim for breach of a non-compete agreement and breach of fiduciary responsibilities. Humphrey challenges trial court's findings with regard to the amount of damages for commissions awarded for 1999 and the failure to award prejudgment interest on the judgment for breach of contract. We affirm, as modified.
David G. Mills v. Shelby County Election Comm., et al. - W2005-02883-COA-R3-CV View
Shelby County - Plaintiff/Appellant filed suit under the Tennessee Declaratory Judgment Act asserting that the legislation authorizing the use of electronic voting machines in some jurisdictions violated Art. I, § 5 and Art. IV, § 1 of the Tennessee Constitution. The Shelby County Chancery Court dismissed Plaintiff/Appellant’s complaint pursuant to Tenn. R. Civ. P. 12.02(6). We affirm.
Dept of Children's Services v. Daniel Howard;
In the matter of: W.A.H. & A.N.H. - W2006-00585-COA-R3-PT View
Shelby County - This case stems from a petition to terminate a father’s parental rights. At trial, the chancery court terminated the father’s parental rights as to his two minor children finding that grounds for terminating the father’s parental rights existed under sections 36-1-113(g)(1) and 36-1-113(g)(3) of the Tennessee Code by clear and convincing evidence and that it was in the best interest of the children to terminate the father’s parental rights. On appeal, the State of Tennessee, Department of Children’s Services concedes that there was not clear and convincing evidence to support a finding that grounds for terminating the father’s parental rights under section 36-1-113(g)(1) existed. However, it asserts on appeal that father’s narcissistic personality disorder was sufficient evidence to support a finding that the grounds for terminating the father’s parental rights pursuant to section 36-1-113(g)(3) of the Tennessee Code existed. On appeal, the father asserts that the Department of Children’s Services failed to make reasonable efforts to reunite his family, and thus, his parental rights may not be terminated as yet under section 36-1-113(g)(3). We reverse.
In Re: The Estate of Mary Reeves Davis - M2002-00836-COA-R3-CV View
Davidson County - W. Terry Davis (“Husband”) and Mary Reeves Davis (“Wife”) were married in May of 1969. Two days before the marriage, Husband was asked to sign an antenuptial agreement, which he signed the following day. Husband and Wife remained married for over thirty years until Wife’s death in 1999. When Wife’s will was admitted to probate, Husband filed a petition for an elective share of Wife’s estate plus one year’s support. Various heirs and the Administrator of the Estate responded to the petition, claiming the antenuptial agreement prohibited Husband from electing against the will. The Trial Court found that the heirs and the Administrator had proven by a preponderance of the evidence that the antenuptial agreement was enforceable because Wife had made a full and fair disclosure of her assets prior to entering into the agreement. Husband appeals, and we reverse.
Phoenix Insurance v. Est. of Mary Napier Ganier, et al. - M2005-02107-COA-R3-CV View
Davidson County - Richards and Richards (“the Tenant”) leased a storage facility from Mary Napier Ganier (“the Landlord”). The lease required the Tenant to obtain personal property insurance for its own benefit. The lease also required the Tenant to obtain a comprehensive general liability policy for the benefit of the Tenant, the Landlord, and the Landlord’s rental agent, Bryan, Ward & Elmore (“the Rental Agent”). The Tenant obtained property insurance and comprehensive general liability insurance through Phoenix Insurance Company (“Phoenix”). A metal shed located on property next to the leased premises caught on fire, allegedly due to the negligence of the Landlord and the Rental Agent. The fire resulted in substantial damage to the Tenant’s personal property. Pursuant to the property insurance portion of the policy, Phoenix paid the Tenant over $1.1 million for the damage to the Tenant’s personal property. Phoenix then filed this subrogation action against the Landlord and Rental Agent. The Trial Court granted summary judgment to the Landlord and Rental Agent after concluding they were additional insureds under the Tenant’s insurance policy and, therefore, Phoenix could not pursue a subrogation claim against its own insured. We reverse the judgment of the Trial Court and remand for further proceedings.
Rodney Curtis v. Christy Hill - M2005-02230-COA-R3-CV View
Lawrence County - This is a post-divorce change of custody case. The trial court changed custody of the parties’ two minor children from the mother to the father. We hold that the evidence preponderates against the trial court’s finding that there had been a material change of circumstances to justify a change in custody in the absence of proof that the mother’s sexual indiscretions and other alleged misconduct had affected or would affect the children in an adverse way. We therefore reverse the judgment of the trial court.
Rachel Sumner, et al. v. Metro Board of Public Health - M2005-01820-COA-R3-CV View
Davidson County - This appeal involves the efforts of three Davidson County residents to stop the spraying of insecticide for mosquitos in the Nashville area because of the alleged toxic effects of the insecticide. After the Metro Public Health Department’s Director of Health rejected the petitioners’ proposal, they appealed to the Metropolitan Board of Public Health. When the Board denied their request, they filed a petition for writ of certiorari seeking judicial review of the Board’s action. The trial court dismissed the case because it determined that the residents lacked standing to seek review. We conclude that because the Board did not question the petitioners’ standing when they appeared before it to appeal the Director of Health’s decision to resume spraying, the Board could not later avoid judicial review of its decision upon the ground that the petitioners were without standing. Accordingly, we reverse the trial court’s dismissal of the petition for writ of certiorari, and remand for review of the petition upon its merits.
Virginia M. Fitzgerald v. Claude A. Fitzgerald - M2005-00440-COA-R3-CV View
Maury County - Wife appeals from a final decree of divorce challenging the trial court’s distribution of property. Because the wife raises factual issues and there is no transcript of the evidence in the record, we must presume the record would have supported the factual findings of the trial court and accordingly affirm.
Cases posted the week of 07/31/2006
Cumberland Bank v. G & S Implement Co. et al. - M2004-02650-COA-R3-CV View
Sumner County - This appeal involves a dispute between a bank and the co-maker of a note. The bank asserted that the note was in default and filed suit in the Circuit Court for Sumner County against the co-maker of the note and others. The co-maker asserted that he was not liable on the note either as a maker or a guarantor and asserted affirmative defenses based on res judicata, discharge by payment in full, and the contractual limits on his guaranty. Following a bench trial, the trial court held in favor of the bank and ordered the co-maker to pay the bank $162,246.37 plus $17,500.00 in attorney’s fees. The co-maker appealed. We have determined that the co-maker is not liable to the bank as either maker or guarantor because the bank’s acceptance of a new note from the other maker of the note discharged the co-maker’s obligations under the note.
In the matter of K. E. R. - M2006-00255-COA-R3-PT View
Robertson County- The Department of Children’s Services petitioned the trial court to terminate the parental rights of a mother whose child had tested positive for cocaine at birth. The court granted the petition, finding among other things that while the child was in foster care, the mother continued to use cocaine, had not successfully corrected the conditions that led the Department to assume custody of the child, and that termination was in the child’s best interest. The mother appealed. We affirm the trial court.
Ruskin Vest, Jr., et al. v. Duncan-Williams, Inc. - M2005-00466-COA-R3-CV View
Maury County - After Court of Appeals on interlocutory appeal affirmed denial of the first request, the trial court dismissed appellants’ second motion to compel arbitration on the basis the evidence supporting the second motion was not newly discovered evidence. We affirm.
In Re: E.M.P. - E2006-00446-COA-R3-PT View
Knox County - P.B.L. and C.J.L. (“Petitioners”) filed a petition to terminate the parental rights of C.M.P. (“Mother”) to her daughter, E.M.P. (“the child”). Petitioners also sought to adopt the child. Petitioners alleged that Mother had abandoned the child by willfully failing to support and visit the child for the four month period immediately preceding Mother’s incarceration. As further grounds to terminate Mother’s parental rights, Petitioners alleged that Mother was serving a prison sentence of over ten (10) years, and that the child was under eight (8) years of age when the sentence was imposed. Following a trial, the Trial Court determined there was clear and convincing evidence to terminate Mother’s parental rights on the basis of abandonment and because Mother was serving a prison sentence of ten (10) or more years and the child was under the age of eight (8) when the sentence was imposed. The Trial Court also concluded that there was clear and convincing evidence that it was in the child’s best interests for Mother’s parental rights to be terminated. Although we reverse the Trial Court’s judgment that Mother had abandoned the child, we affirm the Trial Court’s judgment that grounds existed to terminate Mother’s parental rights because Mother was serving a prison sentence of ten (10) or more years and the child was under the age of eight (8) when the sentence was imposed. As we also affirm the Trial Court’s decision that there was clear and convincing evidence that it was in the child’s best interests for Mother’s parental rights to be terminated, we affirm the Trial Court’s judgment terminating Mother’s
parental rights.
Cynthia Church v. Charles Church - M2004-02702-COA-R3-CV View
Williamson County- This appeal involves a dispute regarding the classification of property in a divorce proceeding filed in the Circuit Court for Williamson County. The parties stipulated that grounds for divorce existed and that neither party would seek spousal support. They also agreed on the division of the marital estate except for the wife’s interests in her family’s automobile dealerships and real estate holdings. The wife asserted that these interests were gifts and, therefore, her separate property. The husband insisted that the wife’s interests were not gifts and that they should be treated as marital property. The trial court, sitting without a jury, found that the wife’s interests in her family’s automobile dealerships and real estate holdings were gifts to the wife alone. Accordingly, the court classified the interests as the wife’s separate property and declined to include them in the marital estate. Thereafter, the trial court entered an order declaring the parties divorced and awarding each party approximately equal shares of the marital estate. The husband has appealed. We have concluded that the trial court did not err in classifying the original transfer of the wife’s interests in the family dealerships and real estate holdings as gifts within the meaning of the equitable distribution statute.
Gene Griffin v. Troy Mendius & State Farm Ins. - W2005-01542-COA-R3-CV View
Shelby County - This appeal involves Rule 11 sanctions. The plaintiff was injured in an automobile accident. The plaintiff filed a lawsuit against the other driver for his damages arising out of the accident. Believing the other driver to be uninsured, the plaintiff served the complaint on his own automobile insurance carrier pursuant to the uninsured motorist statute. Subsequently, the plaintiff was informed that the other driver was not uninsured as originally believed. The plaintiff nevertheless proceeded with the litigation under his uninsured motorist theory. After the plaintiff’s claim was dismissed, the insurance company sought Rule 11 sanctions. The trial court awarded the insurance company its attorney’s fees, costs, and expenses incurred after the date the plaintiff was notified that the other driver was insured. The plaintiff now appeals, arguing that the trial court erred by granting the Rule 11 sanctions. We affirm.
Flossie Howard & Ezell Roberson v. Kindred Nursing Centers & Baptist Memorial Health Care - W2005-02360-COA-R3-CV View
Carroll County- This case involves a statute of limitations. The plaintiffs’ decedent died in April 2000 at a nursing home. In February 2002, the plaintiffs filed this lawsuit against the nursing home in state court, alleging negligent care by the nursing home. The nursing home removed the action to federal court. Subsequently, the nursing home asserted fault against the hospital that treated the decedent prior to her death. The plaintiffs then amended their complaint to name the hospital as a defendant. Later, the federal court entered an order of dismissal as to the nursing home and remanded the remaining proceedings to state court. After that, the defendant hospital filed a motion to dismiss. The state court granted the motion to dismiss, ruling that the plaintiffs’ action was a medical malpractice action and was not timely under the applicable statute of limitations. We affirm.
Tammy Joiner v. James Griffith - M2004-02601-COA-R3-CV View
(Concur) - View
Montgomery County - This bitter change of custody proceeding originated with Mother’s filing of a Petition to Stay Visitation based upon concerns that the parties’ youngest child had been potentially exposed to inappropriate sexual behavior while in Father’s custody. Father counterclaimed for a change in custody based upon Mother’s attempt to interfere with Father’s visitation. Following a bench trial, the trial court found Mother’s accusations unfounded, awarded Father joint custody, and decreased Father's child support. Mother asserts that the trial court erred by finding the circumstances had changed sufficiently to modify custody or child support. Since the outcome of the custody issue was dependent on the trial court’s assessment of the credibility of the witnesses, we affirm the trial court’s conclusion that there was a material change of circumstances. We, however, have concluded the trial court erred in setting child support, and remand that issue for further proceedings.
Alderwoods, Inc., et al. v. Alexander Grantor Retained Annuity Trusts, et al. - M2005-02025-COA-R3-CV View
Sumner County - Plaintiff filed this action seeking to enforce its option under a long-term real estate lease to purchase the real estate at a price to be determined pursuant to a procedure set forth in the lease. Defendant admitted Plaintiff had the right to purchase the property but not at the price Plaintiff offered. The trial court granted judgment on the pleadings in favor of Plaintiff pursuant to Tenn. R. Civ. P. 12, from which order the defendant appeals. We have concluded that Defendant’s Answer constituted a denial that Plaintiff fully complied with the option provisions in the lease agreement. Therefore, Plaintiff’s Motion for Judgment on the Pleadings should not have been granted.
Don McClaran, et al. v. Judith Ann Beardsley, et al. - M2005-02042-COA-R3-CV View
Rutherford County - In this case, the unsuccessful Plaintiff appeals the grant of summary judgment in favor of a will offered for probate by the defendants, Judith Ann Beardsley as executrix and Cavalry Bank Trust Department as Administrator ad litem for the estate of Olalee McClaran. Plaintiff challenges the will as a product of fraud in the inducement and undue influence. The proponents filed a Motion to Dismiss or in the Alternative for Summary Judgment. From the summary judgment grant against him, Mr. McClaran now appeals. We affirm the trial court.
Debra Jewett v. Robert Jewett - M2005-00282-COA-R3-CV View
Sumner County - This appeal involves a divorce decree entered in default against a non-resident. Appellant, Robert William Jewett, urges on appeal that the trial court erred in denying his Motion to Alter or Amend the default decree. We affirm the trial court’s decree in its entirety and remand the case for further proceedings.
Dept. of Children's Services v. D. D. T., et al. - M2006-00671-COA-R3-PT View
Robertson County - Father, whose parental rights were terminated on the ground of abandonment, appeals contending the Department failed to make reasonable efforts to reunify the family. The trial court ruled that Father’s abandonment of the child relieved the Department of the duty to make reasonable efforts to reunify the family. We affirm, concluding that abandonment constitutes an aggravated circumstance for which Tenn. Code Ann. § 37-1-166(g)(4) relieves the Department of the duty to make reasonable efforts to reunify the family.
Nora Moore vs. Ronnie Moore - E2005-02469-COA-R3-CV View
Bradley County- Nora Elizabeth Kilby Moore (“Mother”) and Ronnie Dale Moore (“Father”) were divorced in 1991. Father’s child support obligation was set at $100 per week. As part of a divorce settlement, Father was awarded all of his common stock in Ed’s Cycles, Inc. – Father’s employer at the time of the divorce. Mother filed a petition to modify in 1999, which petition was settled upon Father’s payment to Mother of $4,000. In June, 2001, Father sold all of his stock in Ed’s Cycles, Inc., to his sister for $687,550, plus an additional $100,000 for a covenant not to compete for five years. Father received 20% of the total sale price at the 2001 closing, with the remainder, including interest, to be paid over time in sixty monthly installments of $11,758.66 each. Mother filed a second petition to modify in December, 2001, claiming a significant variance in Father’s income and asserting that her child support should be increased. Mother also claimed that the settlement of the 1999 petition to modify was not valid. The trial court determined that the settlement of the first petition to modify was valid, and that the capital gain realized by Father as a result of the sale of his stock in Ed’s Cycles, Inc., was a “one-time capital gain” and, as such, should not be considered in calculating Father’s income for child support purposes. The trial court denied Mother’s petition in toto. She appeals, raising issues with respect to the trial court’s treatment of Father’s capital gain and other matters. We affirm in part, reverse in part, and remand with instructions.
Sharon Hartman vs. Leonard Hartman - E2005-00010-COA-R3-CV View
Greene County - This is a post-divorce case. Following the trial court’s entry of the judgment of divorce, Leonard Lee Hartman (“Husband”) filed a Tenn. R. Civ. P. 60.02 motion for relief, asserting error with respect to the trial court’s treatment of a debt owed by the parties. Husband later filed a motion to modify his spousal support obligation to his former wife, Sharon Faye Brown Hartman (“Wife”). The trial court denied Husband’s Rule 60.02 motion, finding that the motion was untimely because it was filed more than one year after the entry of the judgment of divorce. The trial court also found that, with respect to Husband’s motion to modify his alimony obligation, the financial status of the parties constituted a material change in circumstances warranting a reduction in, but not the complete elimination of, Husband’s alimony obligation. Husband appeals these findings, arguing (1) that the evidence preponderates against the trial court’s refusal to completely eliminate his spousal support obligation; and (2) that the trial court abused its discretion when it denied his Rule 60.02 motion in view of the fact that, according to Husband, (a) Wife misrepresented facts to the trial court and (b) there is ambiguity in the divorce judgment. Husband also takes issue with the trial court’s denial of his request for attorney’s fees and expenses incurred by him as a result of Wife’s alleged discovery abuse. We affirm.
Administrative Resources, et al vs. Barrow Group, et al. - E2005-01792-COA-R3-CV View
Washington County- The plaintiffs sued their insurance agent and his company, under theories of breach of contract and negligence, claiming damages resulting from the agent’s alleged failure to procure and maintain for the plaintiffs a master workers’ compensation insurance policy at a discounted rate. At a bench trial, the court granted the defendants’ motion for involuntary dismissal made at the conclusion of the plaintiffs’ proof. They appeal. We affirm.
Sulphuric Acid Trading Co. vs. Greenwich Ins., et al. - E2005-02395-COA-R3-CV View
Hamilton County - The plaintiff, Sulphuric Acid Trading Company, Inc., (&ld