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Cases posted the week of 9/29/2008
Joe Murphy, Individually, d/b/a Cool Flame Lamps v. Resurgence Financial, LLC, Assignee of Wells Fargo Bank - W2008-00197-COA-R3-CV View
Carroll County - Appellee Bank filed suit against Appellant to collect for charges made to Appellant’s account. The general sessions court entered judgment in favor of Appellee Bank; Appellant, proceeding pro se, appealed that decision to the Circuit Court at Carroll County. The circuit court affirmed the judgment of the general sessions court and Appellant appeals. In the absence of a transcript or statement of the evidence, the trial court’s factual findings are conclusive on appeal, and we affirm.
James R. Gulley v. Tennessee Department of
Correction - M2007-02312-COA-R3-CV View
Davidson County - In this appeal, we
are asked to determine whether the chancery court properly
granted appellee’s Motion for Summary Judgment.
The chancery court granted appellee’s Motion for Summary
Judgment finding that appellee did not alter the Judgment of
the trial court, when it imposed a consecutive sentence in Hamblen
County case 03CR318, as the sentence in case 03CR318 was specifically
ordered to be served consecutively to the sentence in Jefferson
County case 7087. On appeal, appellant contends that appellee
altered the trial court’s Judgment, as the Judgment orders
the sentence in case 03CR318 to be served concurrently with the
sentences in Hamblen County cases 03CR231, 03CR319, and 04CR068.
Appellant claims appellee’s imposition of a consecutive
sentence constituted an unauthorized alteration which violated
Appellant’s state and federal guarantees against double
jeopardy. We affirm.
Leroy
Williams v. Columbia Housing Authority - M2007-01379-COA-R3-CV View
Maury County - This appeal involves summary judgment
on an employee’s common
law and statutory retaliatory discharge claims. The trial court granted
summary judgment in favor of the employer, finding that the employee
had not established a prima facie case for either claim. The employee
appeals, and we affirm.
In the
Matter of: C.M.C. Michelle Marie Chaffin v. Cheryl Leathers and Roy
Leathers and David Walter Deckard -M2008-00329-COA-R3-JV View
Davidson County - Mother of minor child appeals a juvenile
court order rejecting her challenge to the validity of a 2004 order awarding
custody of the child to maternal grandparents. Mother argues that the
2004 order is void because she did not receive notice of the proceedings
and the order does not contain necessary findings. Mother further argues
that the juvenile court erred in failing to give her a full hearing. We
have determined that the appealed order arose out of dependency and neglect
proceedings and, therefore, must be appealed to the circuit court.
C.S. v. The Diocese
of Nashville - M2007-02076-COA-R3-CV View
Davidson County - This case arose from the sexual abuse of a minor by a Catholic priest.
The plaintiff, the victim, claimed the defendant, the priest’s
employer, knew of and concealed the priest’s propensity to commit
sex crimes against adolescent boys. Approximately thirty (30) years
after the abuse, the plaintiff filed a complaint alleging that such
actions constituted outrageous conduct and negligence by the defendant
leading to the plaintiff’s abuse. The defendant moved for dismissal
of the case for failure to state a claim upon which relief can be granted
because the statute of limitations bars such actions brought more than
one year after the minor reaches the age of majority. The plaintiff
argued the defendant’s fraudulent concealment of plaintiff’s
cause of action tolled the statute of limitations. The trial court
granted the defendant’s motion to dismiss because the plaintiff
had sufficient knowledge to discover his cause of action against the
defendant before the statute of limitations expired. We affirm.
Carl Anderson, Ed Howell Anderson, and
Gary Anderson v. U.S.A. Truck, Inc., an Arkansas Corporation,
and Lonzie E. Neal - W2006-01967-COA-R3-CV View
Henderson County - This is a vehicular accident
case. The three plaintiffs, a father and two grown sons, were
riding in a truck pulling a trailer. An 18-wheeler driven by the
individual defendant rear-ended the plaintiffs. In the days after
the accident, all three plaintiffs sought medical treatment for
back and neck pain. They filed this lawsuit against the defendants
for injuries sustained in the accident. In the jury trial, after
the close of the plaintiffs’ proof,
the trial court directed a verdict in favor of the defendants
on the issue of punitive damages. At the conclusion of the six-day
trial, the jury awarded two of the plaintiffs $10,000 each in
damages and awarded the other plaintiff $200,000. Fault for the
accident was apportioned 70% to the defendant and 30% to the driver
of the plaintiffs’ truck, so the plaintiffs’ awards
were reduced by 30%. The trial court denied the plaintiffs’ motion
to for additur or for a new trial. The plaintiffs now appeal,
claiming that the issue of punitive damages should have been presented
to the jury, that the amount of the jury’s awards were de
minimus and outside the realm of reasonableness, and that there
was no material evidence to support the jury’s verdict.
We affirm, finding inter alia that the trial court did not err
in directing a verdict on the issue of punitive damages, and that
material evidence supported the jury’s verdict.
Christina R. Britt, by next friend and mother, Caroline J.
Dale, and Caroline J. Dale, individually v. Maury County Board of Education
and Maury County, Tennessee -
M2006-01921-COA-R3-CV View
Maury County - The trial court granted the Board
of Education’s Motion for Summary Judgment dismissing a
cheerleader’s two claims for personal injury under the
Tennessee Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-101
et seq. We affirm the judgment as to the claim that the Board
negligently hired the sponsor of the cheerleading squad. Finding,
however, that a genuine dispute of material fact exists as to
the cheerleading squad sponsor’s negligence, we reverse
that portion of the judgment.
Dennis B. Gann, et al vs. The City of Chattanooga, et al -
E2007-01886-COA-R3-CV View
Hamilton County - The plaintiffs, Chattanooga residents
whose homes are adjacent to a tract of land that was rezoned to make
way for the construction of a grocery store, sought a declaratory
judgment that the zoning amendment was illegal. The City of Chattanooga,
the Chattanooga City Council, and the developer, Wilwat Properties,
Inc., were named as defendants. Plaintiffs argue that the rezoning
did not comply with the Hixson-North River Land Use Plan; that the
City Council’s approval of the application is arbitrarily inconsistent
with the council’s prior denial of a similar application; and
that the council impermissibly relied upon the recommendation of
the Hixson North River Leadership Committee – a recommendation
that was made at an informal meeting of which the plaintiffs claim
to have had no notice. The trial court dismissed the case at the
close of the plaintiffs’ proof, finding that the plaintiffs
had failed to prove that the zoning decision lacked a rational basis
or was arbitrary, capricious or unconstitutional. Plaintiffs appeal.
We affirm.
State of Tennessee ex rel Claude Cain, et al vs. City of Church
Hill, Tennessee -
E2007-00700-COA-R3-CV View
Hawkins County - The State of Tennessee, proceeding
on relation of six individuals and one entity (who, for ease
of reference, will collectively be referred to as “the
plaintiffs”), sought mandamus in 2002 to force the City
of Church Hill (“the City”) to extend a sewer line
to the individuals’ homes. The individuals are residents
of a neighborhood in Hawkins County that was annexed by the
City in 1988. They claim that the City failed to adhere to
the plan of services adopted as part of the annexation process,
and that the plaintiffs are therefore entitled to mandamus
under Tenn. Code Ann. § 6-51-108 (2005). The plan of
services adopted in 1988 states that “[a] sanitary sewer
system will be provided as soon as economically feasible.” The
trial court granted the plaintiffs summary judgment, finding
that the long delay in installing a sewer system, which continued
at the time of trial, was unreasonable, and that there were
no disputed issues of material fact preventing the court from
granting mandamus under § 6-51-108. However, the court
ordered a trial on the issue of how quickly the City could
reasonably install the sewer line. At the conclusion of this
limited-purpose trial, the court ordered the City to extend
sewer service to the plaintiffs within 16 months. The City
appeals. We vacate the trial court’s grant of summary
judgment and remand for further proceedings.
In Re Estate of Laura Mae Eldridge McGlothin -
E2007-01749-COA-R3-CV View
Roane County - Laura Mae Eldridge McGlothin
(“the Decedent”) was the paternal grandmother and
later the adoptive mother of Jonathan McGlothin (“Son”).
Because of the inability of the Decedent and Son to get along,
the Decedent sent Son to live with Donald Collett and his wife,
Anna Collett. When Son was sent to live with them, he was receiving
social security benefits as a result of the death of his adoptive
father. After the Decedent died, Son and the Colletts filed separate
claims against the Decedent’s estate claiming that the
Decedent improperly retained Son’s social security benefits,
which federal law required the Decedent to use for the care and
maintenance of Son. Following a trial, the court awarded the
Colletts a judgment in the amount of $5,862, and Son a judgment
in the amount of $10,238. The estate appeals, raising various
issues. We modify so much of the judgment as pertains to the
award to Son. As modified, the judgment is affirmed.
Lisa Dawn Haines Huddleston vs. Lee Alan Haines -
E2008-00232-COAR3-CV View
Blount County - In this custody dispute between
parents, the Trial Judge awarded the mother attorney’s
fees against the father. On appeal, we affirm.
Alan C. Odom vs. Janis B. Odom - E2007-02250-COA-R3-CV View
Hamilton County - In 2005, Alan C. Odom (“Husband”)
filed suit for divorce from Janis B. Odom (“Wife”). The
parties married in 1970 and have two adult sons. Husband is a successful
orthopedic surgeon in Chattanooga, Tennessee. With the assistance of
the parties’ sons, the parties were able to resolve several issues
before trial, including how to distribute some but not all of the marital
assets. Following a trial, the Trial Court distributed the remaining
marital property in a manner which resulted in each party being awarded
exactly one-half of the total marital assets. The amount awarded to
each party totaled almost three million dollars. Each party raises
several issues on appeal surrounding the property distribution and
payment of various expenses. We modify the judgment of the Trial Court
and affirm that judgment as so modified.
Cynthia Dawn Johnston Clure vs. Trevis Drew Clure -
E2008-00157-COA-R3-CV View
Roane County - In this divorce case, the sole
issue raised on appeal is whether the trial court made a mathematical
error in the final divorce decree dividing the property, resulting
in an overpayment to the husband. After carefully reviewing and
considering the trial court’s divorce decree and its memorandum
of findings of fact and conclusions of law, we remand to the
trial court to clarify whether its intention in the final decree
was to award, in its division of the equity in the marital estate,
the Husband $38,000 more than the Wife instead of $19,000 more,
or whether the trial court modified its findings and conclusions
in its final divorce decree to correctly reflect its intention
that Husband receive $38,000 more. In the event that the trial
court finds it appropriate to amend its final judgment to correct
the alleged mathematical error, the trial court’s judgment
is affirmed as modified. If the trial court determines that the
divorce decree correctly effectuates its judgment that Husband
should receive $38,000 more of the equity in the marital residence,
the judgment of the trial court is affirmed.
Allied Business Brokers, Inc. v. Abed Amro, et al. -
W2008-00320-COA-R3-CV View
Shelby County
William Burse and wife, June Burse v. Frank W. Hicks, III,
et al. -
W2007-02848-COA-R3-CV View
Haywood County - This is a negligence action.
Burse filed a complaint against Appellant alleging that Appellant
had negligently injured him in an automobile accident. Appellant
answered the complaint, in part, by alleging that the accident
was caused by the negligence of Appellee. At the time of the
accident, Appellee and Burse were standing next to each other
while preparing for a Christmas parade. Appellee moved for summary
judgment alleging that he owed no duty to Burse and that he was
not the cause of the accident. The trial court granted Appellee's
motion for summary judgment, and this appeal followed. We affirm
the trial court’s decision to grant summary judgment.
State of Tennessee vs. Randy George Rogers - E2007-02535-COA-R3-CV View
McMinn County - The Trial Court held defendant in
contempt. On appeal, we affirm.
Tim O'Neil vs. Jack Parks - E2007-01505-COA-R3-CV View
Washington County (Johnson City) - This is an
appeal of the trial court’s judgment dismissing the appeal
of Jack Parks (“Tenant”) from a general sessions
court judgment of eviction. At the hearing in the trial court,
Tim O’Neill (“Landlord”) failed to appear.
Tenant represented to the court that he had vacated the premises,
which were then in the possession of the Landlord; as a consequence,
the trial court dismissed Tenant’s appeal and taxed him
with the costs. Tenant now appeals to this court raising the
sole issue of whether the trial court abused its discretion in
taxing the costs against him. The applicable statute, Tenn. Code
Ann. § 20-12-111 (1994), governs the taxing of costs of
appeals from general sessions court. The trial court’s
decision is consistent with that statute. We find no abuse of
discretion. Accordingly, we affirm.
Cindy Goodson Harvey, et al vs. Farmers Insurance Exchange,
et al -
E2007-02152-COA-R3-CV View
Hamilton County - Ronald W. Harvey, Jr., was
involved in an automobile accident while driving a 1999 Dodge
Caravan in the course of his employment with B&W Wholesalers.
At the time of the accident, Mr. Harvey and his wife, Cindy
Goodson Harvey (collectively “the Harveys”), had
an automobile insurance policy with Farmers Insurance Exchange
(“Insurance Company”) that listed the Caravan as
the covered vehicle. However, the policy included an exclusion
for any vehicle “[w]hile used in employment by any person
whose primary duties are the delivery of products or services[.]” Insurance
Company refused to defend the Harveys in a lawsuit regarding
the accident, claiming that the exclusion applies. The Harveys
sought a declaratory judgment that the accident was covered
by the policy. After a bench trial, the court dismissed the
case and declared that the exclusion applied. The Harveys appeal,
arguing that “delivery of products or services” was
not among Mr. Harvey’s “primary duties,” and
that, in any event, Insurance Company should be estopped from
denying coverage because it knew how Mr. Harvey intended to
use the van and provided coverage anyway. We affirm.
Lisa Marie Walls Altman vs. Benjamin Altman -
E2008-00081-COA-R3-CV View
Washington County - The Trial Judge awarded
the wife a divorce in this case and ordered the husband to pay
periodic alimony in the amount of $5,000.00 a month. The husband
has appealed and we affirm the Judgment of the Trial Court, as
modified.
Russell Ellison, et al vs. Rose Ellison - E2007-01744-COA-R3-CV View
Claiborne County - This case involves an attempt
by Russell Ellison (“Father”) and Frances Ellison
(“Mother”) (collectively “the Grantor Parents”),
ages 85 and 77 respectively, to set aside a warranty deed admittedly
executed by them to one of their three daughters, the defendant
Rose Ellison (“the Grantee Daughter”). Following
a bench trial, the court set aside the deed, finding (1) that
the Grantee Daughter had taken “improper advantage” of
her parents; (2) that Mother was “not mentally competent” to
convey the property; and (3) that the consideration for the conveyance
was “clearly inadequate.” The Grantee Daughter appeals,
raising five issues. We modify the trial court’s judgment.
As modified, it is affirmed.
Steven Todd Walls vs. Tara L. Walls - E2007-02156-COA-R3-CV View
Hamilton County - This is a divorce case. The
only issue before the court is whether the trial court made the
proper calculation of the parties’ respective periods of
parenting time under the Child Support Guidelines in determining
the child support obligation of Tara L. Walls (“Wife”)
to Steven Todd Walls (“Husband”) for the benefit
of the parties’ three minor children. Husband appeals.
We affirm pursuant to the provisions of Court of Appeals Rule
10.
Georgia-Pacific LLC, et al. v. Swift Transportation Corporation -
W2008-00344-COA-R3-CV View
Shelby County - This appeal involves the indemnity
and insurance provisions of a contract, which must be interpreted
according to Georgia law. The trial court found that the defendant
had no duty to indemnify or insure the plaintiff for a claim
based on the plaintiff’s own negligence. We affirm.
In the Matter of: J.C.W., R.J.W. - M2007-02433-COA-R3-PT View
DeKalb County - Father appeals the order of the
Juvenile Court for Dekalb County terminating his parental rights,
contending that neither the grounds for termination nor the court’s
conclusion that termination of Father’s parental rights is
in the best interest of the children are supported by clear and
convincing evidence. Having reviewed the record and finding no
error in the court’s ruling, we affirm same.
William Edward Wynns, Jr. v. Sherrie Blackburn Wynns -
M2007-00740-COA-R3-CV View
Wilson County - This appeal concerns the
spousal support awarded Wife in a divorce action. Both Husband
and Wife sought a divorce in the Circuit Court for Wilson
County. Following a bench trial, the court granted Wife an
absolute divorce based on Husband’s adultery and divided
the marital assets equally between the parties. The court
awarded Wife alimony in the form of attorney’s fees
and insurance premiums for the first year post-divorce followed
by alimony of $500 per month for four years. The court did
not classify the alimony as either rehabilitative, transitional,
in solido, or permanent. Wife appeals seeking increased support
or, in the alternative, a redistribution of marital property.
We have determined that Wife’s spousal support should
be increased based on the disparity between the parties’ economic
status.
Premier Graphics, Inc. v. Western Express, Inc. -
M2007-02761-COA-R3-CV View
Davidson County - Plaintiff’s action charged
defendant with failure to deliver time-sensitive material, and sought
damages. The Trial Court granted summary judgment on the issue of liability
and submitted the issue of damages to a jury. The jury awarded damages
and defendant has appealed raising issues as to liability, timely filing
a claim, the measure of damages under the “Carmack Amendment”,
special damages, and insufficiency of evidence of damages. We affirm
the Trial Court.
Mary Helen White v. Bi-Lo, LLC, d/b/a Bi-Lo -
M2007-02698-COA-R3-CV View
Coffee County - Plaintiff, who was injured
in a slip and fall, appeals the dismissal of her claim for
personal injuries against a grocery store. The trial court
awarded summary judgment based upon a finding that there were
no genuine issues of material fact and that plaintiff had failed
to establish the elements of a premises liability action. Plaintiff
appeals arguing that there is a sufficient dispute of material
fact over whether the grocery store had actual or constructive
notice that a dangerous condition existed. We affirm the trial
court’s finding that the grocery store is entitled to
judgment as a matter of law because there is no evidence in
the record that the grocery store had actual or constructive
notice of the dangerous condition.
Cases posted the week of 9/22/2008
Sara K. Ruder v. Joseph R. Ruder - W2007-01222-COA-R3-CV View
Shelby County - This is a divorce case involving
the interpretation of a Prenuptial Agreement. Husband/Appellant
appeals the trial court’s decision to reimburse certain
expenditures made by Wife as “improvements” to the
marital home. Wife/Appellee appeals the trial court’s denial
of her request for attorney’s fees. Finding no error,
we affirm.
Roger Moon v. Dale Keisling - M2008-00316-COA-R3-CV View
Fentress County - The defendant in an action to
quiet title to real property appeals the trial court’s dismissal
of his Counter-Complaint. An Order of Summary Judgment in favor of
the plaintiff that was dispositive of all issues in the action to
quiet title had been entered months before the defendant made his
motion to amend his answer and to file a counter-complaint. In the
post-judgment motion, the defendant contended that the issues he
desired to raise in the proposed Amended Answer and Counter-Complaint
had been raised but not resolved by the trial court. The trial court
granted the motion to amend. Subsequently, the trial court dismissed
the Counter-Complaint finding that it raised no new issues. We have
determined the Order of Summary Judgment resolved all issues between
the parties and no motions for relief pursuant to Tenn. R. Civ. P.
59 or 60 had been filed. Therefore, the Order of Summary Judgment
became a final, non-appealable judgment thirty days after its entry.
Once the Order became a final, non-appealable judgment, the trial
court lacked jurisdiction to entertain the defendant’s motion
to amend or to consider any issues arising from the amended pleadings.
We, therefore, hold that the Order of Summary Judgment entered on
April 18, 2005 is the final judgment in this matter. We also vacate
the order granting the defendant’s motion for leave to amend
his pleadings and remand with instruction for the trial court to
enter an order denying Keisling’s oral motion to amend and
striking his Answer and Counter-Complaint.
Howell Anderson d/b/a Anderson Truss v. Sequatchie County,
Galloway Enterprises, Inc. and George Galloway -
M2007-02542-COA-R3-CV View
Sequatchie County - The plaintiff appeals a jury
verdict finding that he failed to fulfill a condition in a conditional
sales contract that would have required Sequatchie County to convey
a parcel of property to him. The County appeals the trial court’s
suggestion of additur that would award plaintiff interest on the
purchase price the County attempted to reimburse plaintiff. We
affirm the jury verdict but reverse the additur.
Catherine Smith v. Sally Brittingham Smith and John Michael
Charles Smith -
M2006-01806-COA-R3-CV View (Corrected by Order - Posted October 28, 2008)
Davidson County - This is an appeal from an
order joining a third party in a divorce action. During the
husband and wife’s marriage, husband’s mother gave
the couple a substantial amount of money. The wife filed for
a divorce in circuit court. Soon after, the husband’s
mother filed a lawsuit in chancery court against the husband
and wife, alleging breach of an agreement to repay the funds
and to grant her a security interest in the marital home. Simultaneously,
she filed a lien lis pendens on the marital home. The marital
home was sold, and the chancery court transferred the husband’s
mother’s lien lis pendens to the proceeds of the sale.
The husband allowed a default judgment to be taken against
him in his mother’s chancery court lawsuit. Subsequently,
the circuit court granted the wife’s motion to join the
husband’s mother in the divorce proceedings as a necessary
party. Thereafter, the chancery court case was transferred
to the circuit court. The circuit court held a trial on the
merits; it found no agreement by the wife to repay the monies
given to the couple by the husband’s mother, and dismissed
her claim against the wife. The husband’s mother was
awarded damages against the husband for the full amount of
the money loaned, to be paid out of his share of the proceeds
from the sale of the marital home. The circuit court’s
distribution of the martial estate, however, effectively eliminated
his share of the proceeds. The husband’s mother appeals,
arguing that she was improperly joined in the divorce action,
and that the circuit court did not give proper effect to her
lien lis pendens against the proceeds from the sale of the
marital home. On appeal, we affirm, finding that the joinder
was proper and finding no error in the application of the lien
against the husband’s share of the proceeds.
Universal Outdoor, Inc. and Eller Media v. TN Dept. of Transportation -
M2006-02212-COA-R3-CV View
Davidsono County - The Tennessee Department
of Transportation ordered the removal of a long-existing billboard
to permit the expansion of a highway right-of-way. The billboard’s
owner removed the sign and re-installed it on another part
of its leasehold, within 30 feet of its original location.
The Department refused to renew the permit for the sign or
to issue a new permit because its new location did not comply
with the requirements of The Billboard Regulation and Control
Act of 1972. The owner challenged that decision at an administrative
hearing, arguing that it was entitled to maintain the non-conforming
billboard at its new location under the “grandfathering” clause
of the zoning statute. The administrative law judge disagreed
and ordered the billboard’s removal. The chancery court
affirmed the decision of the administrative law judge. We affirm
the chancery court.
Jennifer McCLain Swan vs. Frank Edward
Swan - E2007-02265-COA-R3-CV View
Knox County - Jennifer McClain Swan (“Mother”)
and Frank Edward Swan (“Father”) were divorced in
March of 2006 in Knox County Chancery Court (“Chancery
Court”). The
parties have two minor children born of the marriage (“the
Children”). In October of 2006, Mother obtained first an
Ex Parte Order of Protection against Father and then a Bridging
Ex Parte Order of Protection from the Fourth Circuit Court for
Knox County (“Circuit Court”). Over the next few months,
Mother filed multiple petitions for contempt alleging that Father
had violated the Order of Protection. After a hearing, the Circuit
Court entered an order finding and holding, inter alia, that Father
had violated the Bridging Order of Protection a total of forty-four
times, that Father would serve time in the Knox County Penal Farm,
that Mother had a no-contact Order of Protection against Father
for ten years, and that Mother would be allowed to relocate outside
the state of Tennessee without having to reveal her address to
Father. The Circuit Court also entered a modification of the Chancery
Court’s Permanent Parenting Plan that, inter alia, named
Mother the primary residential parent and provided that Father
would have co-parenting time with the Children only upon the recommendation
and approval of Father’s psychologist, the Children’s
psychologist, the Guardian Ad Litem, and the Court. Father appeals
to this Court. We vacate the Permanent Parenting Plan entered
by the Circuit Court and affirm the remainder of the Order of
Protection.
Michelle Carol Langford v. Dan B. Langford - M2007-01275-COA-R3-CV View
Bedford County - Father appeals the amount of
child support set by the trial court in a default judgment of
divorce. Father was ordered to pay support in the amount of $581
per month. Father is incarcerated and argues it was error for
the court to base the amount of child support on his pre-conviction
earning capacity. Finding the evidence in the record does not
preponderate against the trial court’s findings, we affirm
the judgment of the trial court.
Vickie
Robnett v. Edward H. Tenison, Jr. - M2007-02490-COA-R3-CV View
Lewis County - The issue is whether a court-ordered
easement by necessity for ingress and egress to landlocked property
may be terminated on the ground it is no longer necessary because the
landlocked owner has an express easement through which that owner has
reasonable, although not as desirable, ingress and egress. The trial
court denied the petition to terminate the easement by necessity upon
a finding it would place an undue burden on the landlocked property
owner to have it terminated. We have determined the trial court applied
an incorrect legal standard, that of undue burden, to deny the petition
to terminate the easement at issue. Easements by necessity are dependent
on the necessity that created them; therefore, a way of necessity continues
only as long as a necessity for its use continues. The fact that the
way of necessity would be the most convenient does not prevent its
extinguishment when it ceases to be absolutely necessary. Accordingly,
we reverse the decision of the trial court.
Estate of
Hillard Cartwright, et al v. Standard Fire Insurance Company -
M2007-02691-COA-R3-CV View
Davidson County - Wilma C. James and the Estate of
Hillard C. Cartwright, challenge the trial court’s determination
that Ms. James did not have standing to enforce an insurance contract
between Mr. Cartwright and Standard Fire Insurance Company because
she was neither a party to nor an intended beneficiary of the policy,
and that the Hillard Cartwright estate could not enforce the policy
because the estate did not have an insurable interest in the property
at the time of loss. Finding no error, we affirm.
In re: A.N.F. (d.o.b. 10/24/99), a child
under eighteen years of age - W2007-02122-COA-R3-PT View
McNairy County - This opinion
involves two consolidated appeals. The first case
involves post-divorce petitions to modify a parenting
plan, filed by the husband and the wife, regarding
custody of two children. The second case was filed
by the wife and a third party, seeking to establish
the third party’s parentage of one of the two
children. For the following reasons, we affirm the trial court’s
decision in the custody case as modified, and we affirm the trial
court’s decision in the paternity case.
State of Tennessee, et al vs. Good Times, LTD., et al -
E2007-01172-COA-R3-CV View
Knox County - The State of Tennessee (“State”)
sued Good Times, Ltd. (“Good Times”) and others with regard
to real property deeded to the State by Good Times after the State
was sued for inverse condemnation by Good Times’ lessee, Pun
Wun Chan d/b/a #1 China Buffet (“China Buffet”). The State
claimed that it was entitled to indemnity from Good Times in the inverse
condemnation action under its warranty deed. The Trial Court consolidated
the State’s case against Good Times with the inverse condemnation
action and then bifurcated the trial. The inverse condemnation case
was tried before a jury and China Buffet was awarded a judgment against
the State. The Trial Court then granted summary judgment to Good Times
in the State’s case against Good Times and dismissed the State’s
case. The State appeals to this Court. We vacate the grant of summary
judgment to Good Times, grant the State summary judgment against Good
Times, and remand this case to the Trial Court for a determination
of the amount of damages, and for further proceedings as necessary
with regard to all other parties and claims.
Frederick Bertrand, a citizen and resident of Benton County,
Tennessee v. The Regional Medical Center at Memphis, a Tennessee
Corporation, et al. -
W2008-00025-COA-R3-CV View
Shelby County - This appeal arises from an October
2003 medical malpractice action filed against The Regional Medical
Center at Memphis (“the Med”) and several physicians.
Plaintiff voluntarily non-suited his action and re-filed it within
the one-year period provided by the savings statute codified
at Tennessee Code Annotated § 28-1-105. The trial court
awarded summary judgment to the Med upon determining Plaintiff
could not rely on the savings statute where the General Assembly
had amended the Governmental Tort Liability Act (“the GTLA”),
bringing the Med within the scope of the GTLA as codified at
Tennessee Code Annotated § 29-20-101 (2007 Supp.), et seq.
The amendment became effective July 1, 2003. On November 26,
2007, the trial court entered final judgment in favor of the
Med pursuant to Tennessee Rule of Civil Procedure 54.02. Plaintiff
filed a timely notice of appeal to this Court. We affirm.
Maxwell Medical, Inc., Successor in Interest to Max Well Medical,
LLC v. Loren L. Chumley, Commissioner of Revenue, State of Tennessee -
M2007-01702-COA-R3-CV View
Davidson County - The Clerk and Master, a substitute
Judge, granted defendant summary judgment in this case, and plaintiff
appealed. The record reveals that the substitute Judge was not
designated in accordance with the statutes and case decisions,
and we therefore vacate the summary judgment and remand to the
Trial Court.
Curtis Morris v. Amsouth Bank - W2007-01688-COA-R3-CV View
Shelby County - This appeal involves forged endorsements
on a check. The appellant had two checking accounts at the defendant
bank. The appellant forged endorsements on a check, deposited the
check into his account at the bank, and then removed the proceeds
from his bank account. The bank later determined that the endorsements
on the check were forged and debited the appellant’s other
account in the amount of the fraudulently endorsed check. The appellant
filed a lawsuit against the bank, and the bank counterclaimed for
the amount of the check on which the appellant forged the endorsements.
The bank filed a motion for summary judgment and submitted a statement
of undisputed material facts in support of the motion. The appellant
did not respond to the bank’s statement of undisputed material
facts. The trial court granted summary judgment in favor of the bank,
and the appellant appeals. We affirm and remand the case to the trial
court for determination of damages against the appellant for a frivolous
appeal.
Deborah Jenkins as Personal Representative of the Estate of
Malcom Williams, Jr. and in her individual capacity; Malcom Williams,
Sr., as Parent and Next Friend of Malcom Williams, Jr. and in his
individual capacity; Maria Akpotu as Personal Representative of the
Estate of Edgar Akpotu, and in her individual capacity; Carol and James
Overzet, Individually and as Parents and Next Friends of Jacob Overzet,
a Minor, v. Southland Capital Corporation, Southland and Equity Corporation,
Terry Lynch and Bradford Farms, LLC -
W2007-01180-COA-R3-CV View
Shelby County - This is a consolidated wrongful
death and personal injury case. In May 2002, three young boys
walking beside the road were struck by a drunken driver in
a residential subdivision. Two were killed, the third severely
injured. The plaintiffs sued the developers of the subdivision,
arguing that the absence of sidewalks in the area where the
boys were walking was a cause of the accident. The trial court
granted summary judgment in favor of the developers on grounds
that the plaintiffs’ lawsuit was time-barred under the
four-year statute of repose for improvements to real property,
T.C.A. § 28-3-202. We agree with the trial court that
the improvements to the real property on which the accident
occurred were substantially completed more than four years
prior to the filing of the lawsuits under the statutory definition
at T.C.A. § 28-3-201(2), and therefore affirm.
J.R. Boling, et al vs. City of Pigeon Forge, et al -
E2007-01652-COA-R10-CV View
Sevier County - J.R. Boling (“Plaintiff”)
sued the City of Pigeon Forge, the Pigeon Forge Police Department,
Officer Randy Holbrook, and Detective Tim Trentham. Plaintiff claims
that his vehicle was illegally searched by Officer Holbrook and illegally
impounded by Detective Trentham. Officer Holbrook and Detective Trentham,
both of whom were sued in their individual capacities, filed a motion
for summary judgment claiming the undisputed material facts established
that they were immune and the claims against them should be dismissed.
The Trial Court denied the motion for summary judgment as well as Officer
Holbrook’s and Detective Trentham’s request for an interlocutory
appeal pursuant to Tenn. R. App. P. 9. Thereafter, Officer Holbrook
and Detective Trentham filed a Tenn. R. App. P. 10 request for an extraordinary
appeal, which this Court granted. The sole issue on appeal is whether
the Trial Court erred when it denied Officer Holbrook’s and Detective
Trentham’s motion for summary judgment based on qualified immunity.
We conclude that the undisputed material facts establish that Officer
Holbrook and Detective Trentham are entitled to immunity from the claims
asserted by Plaintiff. Accordingly, we reverse the judgment of the
Trial Court and enter an order dismissing the claims against Officer
Holbrook and Detective Trentham.
PacTech, Inc., et al vs. Auto-Owners Insurance Co., et al -
E2007-01480-COA-R3-CV View
Scott County - Commercial equipment belonging
to the insured was destroyed in a fire, and the insured sought
to recover proceeds under its insurance policy, submitting a sworn
statement in proof of loss to the insurer. A third party, holding
a security interest in the destroyed property, also filed a claim
with the insurer to recover for the loss of its collateral in the
fire as loss payee, pursuant to a mortgage holders clause in the
policy. Alleging that the fire was the result of arson by the insured
and that the insured materially misrepresented information on the
sworn statement with intent to deceive, the insurer denied coverage.
The insurer also denied coverage of the lienholder’s claim,
asserting that the lienholder’s right to recover was no greater
than that of the insured. The insured filed suit against the insurer,
seeking recovery under the policy and requesting damages for violation
of the Tennessee Consumer Protection Act (“TCPA”) and,
in the alternative, for assessment of a bad faith penalty against
the insured under state statutory law. The lienholder’s motion
for summary judgment was granted, and the lienholder was awarded
recovery in the full amount of the debt owed by the insured. The
insured’s motion for directed verdict to recover under the
policy and the insurer’s motion for directed verdict as to
the claim for bad faith penalty were both denied. A jury trial
resulted in findings that the insurer had not violated the TCPA
and that the insured had not committed arson, but had materially
misrepresented information on the sworn statement in proof of loss
with the intent to deceive. The insured’s motion to set aside
the jury verdict was denied. On appeal, we vacate the trial court’s
summary judgment in favor of the lienholder upon the ground that
the mortgage holders clause in the policy did not extend to coverage
of personal property. We affirm the trial court’s denial
of the insured’s motion for directed verdict and motion to
set aside the jury verdict upon the ground that there was material
evidence to support the jury’s finding that the insured materially
misrepresented information on the sworn statement in proof of loss
with intent to deceive. We reverse the trial court’s denial
of the insurer’s motion for directed verdict upon the ground
that the insured failed to make a formal demand with respect to
its claim of bad faith. Finally, we affirm the jury’s verdict
as to the insured’s claim that the insurer violated the TCPA
upon the ground that the insured failed to present evidence showing
that it suffered an ascertainable loss as a consequence of alleged
unfair and deceptive acts of the insurer.
Timothy Sanders v. CB Richard Ellis, Inc. - W2007-02805-COA-R3-CV View
Madison County - This is a premises liability case.
Appellant sued Appellee for injuries sustained in a fall on an icy
parking lot that was maintained by Appellee. The material facts of
the case are undisputed and, on principles of comparative fault,
the trial court determined that Appellant was at least 50% liable
for the injuries he sustained in that Appellant (1) ignored the open
and obvious danger when he undertook to walk inside the bank, (2)
decided not to use the drive-through window in order to avoid traversing
the ice, and (3) undertook a risk that a reasonable person would
have avoided. Finding no error, we affirm.
Robert P. Keenan and Debra B. Keenan v. Dennis R. Delemos and
Patsy R. Delemos -
M2007-2503-COA-R3-CV View
Cheatham County - The issue in this case is whether
the trial court correctly granted summary judgment to the buyers
of a parcel of land, thus requiring the sellers to execute a warranty
deed transferring the property to the buyers on the ground that
the sellers failed to timely exercise their option to repurchase
the property as provided in the contract. We agree with the trial
court that the unambiguous language of the parties’ contract
provided that the sellers had 18 months from the date that sewer
service was made available to the property to exercise their option
to repurchase the land. Because it is undisputed that the sellers
did not timely exercise the option, it expired, and the sellers
are required to comply with the contract and execute and deliver
to the buyers a warranty deed for the property. The trial court’s
grant of summary judgment in favor of the buyers is affirmed.
Cases posted the week of 9/15/2008
State of Tennessee v. Cordelia Ream - M2007-00264-COA-R3-JV View
Dickson County - After the appellant pled guilty
to criminal contempt in the juvenile court and received a four-day
sentence, she appealed to circuit court, contending that the sentence
was excessive. After being unsuccessful in circuit court , she then
appealed to this Court. We found that the appeal of a criminal contempt
conviction should be directly to this Court and not to the circuit
court. Having resolved the appeal process issue, this Court finds
that the acceptance of the guilty plea below was in contravention
of constitutional standards and was plain error. The criminal contempt
conviction is therefore vacated and this case is remanded for further
proceedings.
Melody Curry v. Sam Bratton Curry - M2007-02446-COA-R3-CV View
Davidson County - This is a divorce case. Husband/Appellant
appeals the trial court’s division of certain marital property,
award of retroactive child support, award of Wife/Appellee’s
attorney fees, the standard for modification of the parenting plan
and certain conditions imposed on him by the trial court. We affirm
in part, reverse in part, and remand to the trial court for further
proceedings consistent with this opinion.
Metropolitan Government of Nashville & Davidson County
v. Margaret Hudson -
M2007-01304-COA-R3-CV View
Davidson County - This is an appeal from an
award of discretionary costs. The defendant owned a rental
house in an historic district. She violated the historic district’s
design guidelines by having vinyl siding installed on the house.
The plaintiff filed a lawsuit to require the homeowner to remove
the siding. The plaintiff was granted summary judgment, from
which the defendant homeowner appealed. In the first appeal
of this case, the grant of summary judgment was affirmed. After
remand, the defendant homeowner failed to remove the siding,
so the plaintiff filed a petition for contempt. After a hearing,
the trial court found that the homeowner had the financial
resources to have the siding removed, so it ordered the homeowner
to (1) retain a contractor and (2) remove the siding. The homeowner
was required to notify the court upon completion of both steps.
The siding was removed. Once the house was brought into compliance,
the plaintiff filed a proposed “order closing the file.” The
trial court granted the motion. Within thirty days after entry
of this order, the plaintiff filed a motion for an award of
its discretionary costs. The homeowner opposed the motion,
arguing that the plaintiff’s motion for discretionary
costs was untimely, and that the order requiring compliance
was the final order, not the “order closing the file.” The
trial court awarded the plaintiff its discretionary costs,
and the homeowner appealed. We affirm, finding that the motion
for discretionary costs was timely filed.
Denise R. Cardella v. Vincent R. Cardella, Jr. -
M2007-01522-COA-R3-CV View
Rutherford County - This is a divorce and
tort action. Wife filed a complaint for divorce against husband,
alleging, as grounds, inappropriate marital conduct, adultery,
and irreconcilable differences. Husband counter-claimed for
an absolute divorce. In her amended complaint, Wife also claimed
that Husband had negligently infected her with a sexually transmitted
disease, and sought monetary damages. A full trial on the merits
was held. The trial court awarded the divorce to Wife on the
stipulated ground of adultery, approved the stipulated division
of personal property and debts, named wife as primary residential
parent, set shared parenting time, and awarded attorney fees
and costs. In addition, the trial court granted alimony in
solido and alimony in futuro to Wife and awarded her damages
in the amount of $288,000.00 for the negligence claim. Husband
appeals, asserting that the trial court erred in finding him
liable for negligently transmitting a sexually transmitted
disease to the wife and in awarding $288,000.00 to wife for
the negligence. Husband also appeals the propriety of the trial
court’s awards of alimony in solido and alimony in futuro.
We reverse the trial court’s award of
alimony in futuro. We affirm the trial court on all other issues.
Rode Oil Company, Inc., and Long Outdoor Advertising v. Lamar
Advertising Company (formerly Outdoor Communications, Inc.) -
W2007-02017-COA-R3-CV View
Madison County - At its core, this appeal presents a
dispute over whether two parties had entered into an enforceable agreement
for the lease of land to be used for the placement of a roadside billboard.
The trial court held that there existed only an offer from the property
owner which was revocable and that therefore the property owner could
freely lease the same property to a third party. During the pendency of
this litigation in the trial court, which took many years, a series of
corporate asset transfers and acquisitions occurred—the result of
which raises the question of whether the same party is in fact now on
both sides of this suit. The court below held that a live controversy
still exists, and it subsequently proceeded to set damages. For the reasons
stated herein, we conclude that the trial court erred in its initial decision
regarding the existence of a binding lease agreement. Accordingly, we
reverse and remand for further proceedings consistent with this opinion.
J.Doe vs. Richard L. Duncan, et al - E2006-02506-COA-R3-CV View
Knox County - Since plaintiff in this legal malpractice
case failed to refute defendants’ affidavits that they were familiar
with and complied with the applicable standard of care and that plaintiff
was not injured by any violation of the standard, the trial court correctly
granted defendants’ motion for summary judgment. The trial court
did not abuse its discretion in failing to revise its order based on
affidavits filed after the final order since plaintiff gave no explanation
why the affidavits should be considered and since the affidavits did
not create a genuine issue of material fact as to whether the defendants
committed legal malpractice or injured plaintiff.
Reginol L. Waters v. Tennessee Department of Correction, George
Little, Roland Colson, and Eric Hardison, in their official capacities,
and Glen Turner, Patsy Clark, Sandra Gates, and Nina Moss -
W2007-01397-COA-R3-CV View
Hardeman County - This is an appeal from the dismissal
of a petition for common-law writ of certiorari. The appellant is an
inmate with the Tennessee Department of Correction (“TDOC”).
He was convicted by the prison disciplinary board of a disciplinary
charge. He filed a grievance related to his disciplinary charge which
was denied by the prison’s grievance committee, and the denial
was approved by TDOC. The inmate filed a petition for a writ of certiorari
as to (1) his conviction on the disciplinary charge and (2) the denial
of his grievance. TDOC filed a motion to dismiss the petition as it
related to the decision of grievance committee, but consented to a grant
of the writ and the filing of the administrative record of the proceedings
on the disciplinary charge. The record on the disciplinary charge was
transmitted to the trial court. Later, TDOC filed a motion for a judgment
on the record with respect to the disciplinary board decision. The trial
court entered an order dismissing the petition as it related to the
grievance committee decision. The order did not adjudicate TDOC’s
motion for a judgment on the record as to the disciplinary board decision.
Consequently, because the trial court did not adjudicate all of the
claims raised below, the order on appeal is not final and is not appealable
as of right. Therefore, finding that we lack subject matter jurisdiction,
we dismiss the appeal.
Douglas C. York, M.D. v. Joseph B. Batson
and Claudine Drueke - M2007-02418-COA-R3-CV View
Williamson County - This is a summary
judgment case. Appellant and Appellee entered into an
oral agreement for the exchange of land. Appellee negotiated
the purchase of the property with a third party which
he then was to exchange with Appellant. When Appellee
decided to keep the property for himself, Appellant
filed suit, alleging agency, breach of contract, equitable
estoppel, and wrongful inducement of a breach of contract.
Appellees filed a counter-claim for wrongful inducement
of a breach of contract. The trial court granted Appellees’ motion
for summary judgment, dismissing all of Appellant’s claims,
but declined to grant summary judgment in favor of Appellees on
their counter-claim. Finding no error, we affirm.
Frank E. Teasley v. Tennessee Board of Parole - M2007-01173-COA-R3-CV View
Davidson County - The trial court dismissed Petitioner’s
writ for certiorari on the grounds that it was untimely filed and insufficiently
affirmed where it was not notarized. We vacate dismissal based on the
limitations period and affirm based on the lack of sworn, notarized affirmation.
Melony Gordon v. W. E. Stevens Manufacturing Company,
Inc. - M2007-01126-COA-R3-CV View
Davidson County - Employee appeals from a directed
verdict in a sexual harassment action under the Tennessee Human Rights
Act, Tenn. Code Ann. § 4-21-101, et seq.
Employee sued her employer alleging that sexual harassment by her immediate
supervisor created a hostile work environment. The case proceeded to trial
before a jury. After the close of defendant’s proof, the trial court
granted a directed verdict in favor of defendant-employer. Employee appeals
challenging the legal standard used to weigh the evidence at trial and
arguing against employer’s assertion of the Faragher/Ellerth affirmative
defense. We find the material evidence presented at trial created fact
questions by which a jury could reasonably find in favor of plaintiff-employee.
Therefore, the trial court erred in taking the case from the jury on a
directed verdict. Judgment of the trial court is vacated and the case
is remanded for a new trial.
James B. Johnson and Sylvia S. Johnson v. Charlie B.
Mitchell, Jr. and CBM Enterprises, Inc. - M2007-00977-COA-R3-CV View
Williamson County - Plaintiffs appeal the Chancery
Court’s
grant of summary judgment in this breach of contract action. Finding no
error, we affirm the Chancery Court’s judgment.
Larry Richard Bryant v. Beth Rachelle Bryant - M2007-02386-COA-R3-CV View
Montgomery County - The mother of the parties’ only
child appeals the designation of Father as the primary residential parent
and the division of marital property. She also contends there was evidence
of possible child abuse and that the trial court failed to make specific
findings of fact pursuant to Tenn. Code Ann. § 36-6-106(a)(8).
We affirm the designation of the father as the primary residential parent
and the division of the marital property. We also find that the trial
court was not required to make findings of fact because the mother made
no allegations of abuse in her pleadings and the record contains no evidence
of abuse. We also find that the father is entitled to recover reasonable
and necessary attorney’s
fees incurred on appeal pursuant to Tenn. Code Ann. § 36-5-103(c).
Tony Monroe v. Jacqueline Zierden, et al. - W2007-01818-COA-R3-CV View
Decatur County - The trial court dismissed appellant’s
complaint for specific performance of a contract for the sale
of real estate, and granted appellee reasonable attorney’s
fees as provided in the contract. Appellant appeals the award
of attorney’s fees; appellee
asserts error in the amount of fees awarded. We affirm.
Teresa
Walker Newman v. Wayne Woodard, et al. - W2007-02713-COA-R3-CV View
Lauderdale County - This case concerns the access
rights of a landowner to a section of her property divided from the
rest of her land by a steep bluff. The trial court held that the landowner
did not have an implied easement through her neighbor’s
land to access her property at the bottom of the bluff because the there
was insufficient evidence that the right-of-way preexisted severance of
the properties. The trial court determined that Mrs. Newman did not have
an implied easement by necessity because there was insufficient evidence
that Mrs. Newman would be unable build a road down the bluff for a reasonable
cost. Because the evidence does not preponderate otherwise, we affirm
that Mrs. Newman does not have an implied easement or an implied easement
by necessity over the right-of-way. The trial court also held that Mrs.
Newman lacked a prescriptive easement over the right-or-way because she
failed to prove that her use was exclusive; we affirm on the basis that
Mrs. Newman failed to demonstrate that her use of the right-of-way was
continuous.
Frankie Lewis, et al vs. Cleveland Municipal Airport Authority,
et al -
E2007-00931-COA-R3-CV filed 9/11/08 View
Bradley County - This lawsuit challenges actions
by the Cleveland Municipal Airport Authority (the “Airport
Authority”) and the Bradley County Commission (the “Commission”)
involving the rezoning by the Commission of certain property located
in Bradley County from Forestry Agricultural Residential to Special
Impact Industrial. The Airport Authority intends to relocate the
Cleveland Municipal Airport to the rezoned property. Frankie Lewis
originally filed this lawsuit and Herbert Haney was added later
as a plaintiff. As pertinent to this appeal, the trial court determined
that Lewis lacked taxpayer standing to bring this lawsuit against
the Airport Authority and granted the Airport Authority’s
motion to dismiss. Lewis appeals the dismissal of his lawsuit against
the Airport Authority. As to the Commission, both plaintiffs allege
statutory and procedural violations surrounding notice of the requested
rezoning and the conduct of the Commission in eventually granting
the request for rezoning. The trial court granted the Commission’s
motion for summary judgment after concluding that there were no
genuine issues of material fact and the Commission was entitled
to a judgment as a matter of law. Both Lewis and Haney appeal that
summary judgment. We conclude that the trial court did not err
in granting the Airport Authority’s motion to dismiss and
the Commission’s
motion for summary judgment. The judgment of the trial court is,
therefore, affirmed.
State of Tennessee ex rel. Bee Deselm, et al vs. Diane Jordan,
et al -
E2007-00908-COA-R3-CV filed 9/12/08 View
Knox County - The plaintiffs brought this action
seeking the removal of several Knox County officials from office on
the ground that they were ineligible for their positions by operation
of the term limits provision of the Knox County Charter. Six days
after the plaintiffs filed their complaint, the Tennessee Supreme
Court heard arguments in the case of Jordan v. Knox County. The Supreme
Court in its Jordan opinion, released on January 12, 2007, decided
all issues raised in the case before us. Accordingly, we affirm the
trial court’s dismissal of the plaintiffs’ complaint on
the basis of mootness.
John Doe v. Catholic Bishop for the Diocese of Memphis -
W2007-01575-COA-R9-CV View
Shelby County - This appeal involves the denial of
a motion to dismiss based on the statute of limitations. The plaintiff,
a thirty-seven year old man, filed a lawsuit against the defendant
Catholic diocese. His complaint alleged that, as an adolescent, he
was sexually abused by a Catholic priest employed by the defendant
diocese. The lawsuit alleged that the diocese was negligent in hiring,
retaining, and supervising the priest, and that the diocese breached
its fiduciary duty to the plaintiff by failing to disclose to him
its knowledge that the priest had abused other young boys. The diocese
filed a motion to dismiss, arguing that the lawsuit was barred by
the statute of limitations. In response, the plaintiff argued that
the statute of limitations was tolled under the discovery rule, the
doctrine of fraudulent concealment, and the doctrine of equitable
estoppel. The trial court denied the motion to dismiss. The diocese
was granted permission for this interlocutory appeal. On appeal, we
reverse, finding that the plaintiff’s complaint is time-barred,
and cannot be saved by the discovery rule, the doctrine of fraudulent
concealment, or the doctrine of equitable estoppel.
In Re: Bridgestone/Firestone and Ford Motor Company -
W2006-02550-COA-R9-CV View
Davidson County - The second appeal in this case
involves the effect of a previous forum non conveniens dismissal.
The plaintiffs, residents and citizens of Mexico, were injured in
automobile accidents that took place in Mexico. They filed multiple
lawsuits against several American corporate defendants, alleging that
the accidents were the result of defects in the vehicles’ tires.
The corporate defendants moved for dismissal on the ground of forum
non conveniens.
The trial court denied the motions, and the defendants were granted
permission to file an interlocutory appeal. The Court of Appeals reversed
the trial court and dismissed the consolidated case on the ground
of forum non conveniens, based on the availability of Mexico
as a more convenient forum for litigation of the plaintiffs’ claims.
Subsequently, the plaintiffs filed numerous lawsuits in several Mexican
trial courts. These cases were all dismissed, and the dismissals were
affirmed on appeal. The plaintiffs then filed new lawsuits in Davidson
County Circuit Court against the same defendants, which were again
consolidated for pretrial purposes. The defendants filed motions to
dismiss on grounds of issue preclusion, arguing that the issues of forum
non conveniens and
the availability of Mexico as an available alternate forum had been
determined in their favor in the first appeal. The trial court denied
the motion to dismiss, finding that Mexico was not, in fact, an available
forum, as evidenced by the numerous dismissals by the Mexican tribunals.
The defendants were granted permission for this interlocutory appeal.
On appeal, we address the effect of our previous decision and vacate
the order denying the defendants’ motion to dismiss, and remand
the cause to the trial court for further proceedings on the availability
of Mexico as an alternate forum for the plaintiffs’ claims.
Cases posted the week of 9/8/2008
Cordova the Town Homeowners Association, Inc. v. Gill Development Company,
Inc. -
W2007-01692-COA-R3-CV View
Shelby County - This appeal involves the interpretation
of a declaration of covenants for a homeowners’ association. The
declaration made the developer a member of the homeowners’ association,
insofar as the developer owned lots within the development. It also stated
that the obligation to pay assessments on a given lot did not begin until
either the lot was transferred from the developer or improvements on the
lot were completed, whichever occurred first. The homeowners’ association
sued the developer, seeking damages for unpaid assessments on lots owned
by the developer, on which improvements were not complete. The trial court
granted the motion for summary judgment filed by the homeowners’ association.
The developer appeals. We reverse, concluding that the declaration
of covenants provides that the obligation to pay assessments on
the lots owned by the developer had not yet commenced.
Joseph and Kimberli Davis v. Patrick J. McGuigan, Individually
and d/b/a McGuigan & Associates -
M2007-02242-COA-R3-CV View
Davidson County - Homeowners filed suit against
Appraiser for intentional and negligent misrepresentation and
violation of the Tennessee Consumer Protection Act. Appraiser
moved for summary judgment on all claims. The trial court denied
Appraiser’s motion on the negligent misrepresentation claim, but
dismissed the intentional misrepresentation claim and the Tennessee Consumer
Act claim. During the course of the proceedings, the trial court also
excluded certain witnesses who were tendered as experts. Both parties
appeal. We affirm the trial court’s
grant of summary judgment on both claims, and decline to address
the remaining issues for lack of justiciability.
Barsha Bates Land, et al v. Larry W. Barnes d/b/a Highland
Rim and Gail Shutt -
M2008-001910-COA-R3-CV View
Lincoln County - The trial court dismissed this
medical malpractice case after granting motions to exclude the testimony
of both of the plaintiffs’ expert witnesses. Based upon our
conclusion that the trial court did not abuse its discretion in
excluding the testimony of either expert witness, we affirm the
decision of the trial court.
WS Investments v. David E. Danner, P.C. - M2007-00847-COA-R3-CV View
Davidson County - Tenant appeals the judgment of
the Circuit Court for Davidson County in an unlawful detainer action
on appeal from General Sessions Court awarding Landlord back rent,
possession of the premises, and attorney’s fees. Tenant challenges
the denial of its motion to amend the pleadings and subsequent motion
for new trial, the finding that the lease agreement was unambiguous, and
the denial of its motion to strike allegedly defamatory parts of the record.
Finding the lease unambiguous and no abuse of discretion by the trial
court in denying Tenant’s
motions, we affirm the judgment of the trial court in all respects.
Richard and Roxanne C. Hunter v. Nationwide
Mutual Fire Insurance Company - M2008-00434-COA-R3-CV View
Williamson County - Appellants, Richard
and Roxanne Hunter, filed a breach of contract action
against Nationwide Mutual Fire Insurance Company,
Appellee, in Circuit Court for Williamson County seeking
compensation under their insurance policy for damage
allegedly caused by hail. Following a trial, the jury
returned a verdict in favor of Nationwide. Finding
material evidence in support of the jury’s verdict, we affirm.
Vickie F. (Lout) Hudson v. David P. Lout - W2007-02704-COA-R3-CV View
Tipton County - This domestic relations action requires
us to construe a provision of the parties’ 1993 divorce decree with
respect to the division of Defendant/Appellant David P. Lout’s (Mr.
Lout’s) military retirement pay. The trial court construed the
1993 decree as requiring Mr. Lout to pay to Plaintiff/Appellee Vickie
F. Lout Hudson (Ms. Hudson), Mr. Lout’s former wife, an amount equivalent
to 28 percent of his military retirement pay. The trial court calculated
this amount as one-half the retirement pay received by Mr. Lout, multiplied
by a fraction representing the number of years the parties were married
divided by the number of years Mr. Lout served in the military. The trial
court also ordered Mr. Lout to pay arrearages and awarded Wife her attorney’s
fees as damages predicated on a finding of contempt. Mr. Lout appeals;
we affirm the trial court’s construction of the parties’ 1993
decree of divorce, vacate the finding of contempt and award of attorney’s
fees, and remand.
Stellena Marie Morelock, individually and as next of kin of Delmus
Holmer McCarter vs. The Estate of Rhiannon R. Galford and Danny McKee -
E2007-02254-COA-R3-CV View
Knox County - In this wrongful death action the Trial
Court granted defendants summary judgment on the grounds that plaintiff
was not a proper party to maintain the action. On appeal, we affirm.
Cases posted the week of 9/1/2008
Patsy Wicks Dawson vs. Isaac Dale Dawson - E2008-00199-COA-R3-CV View
Roane County - After more than eighteen years of marriage,
Patsy Wicks Dawson (“Wife”) sued Isaac Dale Dawson (“Husband”)
for divorce. After a trial, the Trial Court entered an order, inter alia,
awarding Husband a divorce and distributing the marital property. Wife
appeals raising an issue regarding the distribution of the marital property.
We vacate the distribution of the marital property and remand this case
to the Trial Court to value items of marital property as necessary to
effectuate an equitable division of marital property under the facts of
this case such that Husband receives 60% and Wife receives 40%. The remainder
of the Trial Court’s
Final Decree of Divorce is affirmed.
Wilma Wilson, et al v. Harry Ours, et al - M2006-02703-COA-R3-CV View
WIlson County - This action arises from the owner
of a cemetery mistakenly selling burial lots to members of the plaintiffs’ family
that belonged to others, the resulting burial of two members of the plaintiffs’ family
in plots that belonged to others, and the resulting disinterment and re-interment
of one of the two decedents. The plaintiffs, six surviving family members
of the two decedents, filed this action against the owner of the cemetery,
the City of Lebanon, and several of its employees in which they asserted
claims for trespass, negligence, nuisance, and outrageous conduct. Prior
to trial, the trial court dismissed all but two claims. The only claims
that went to trial were a claim for general negligence and a claim for
nuisance. Following a bench trial, the trial court dismissed the nuisance
claims of all plaintiffs and dismissed the claims by three of the six
plaintiffs for negligence. The trial court awarded three of the plaintiffs
damages totaling $45,000 for the negligent burial of the decedents. The
plaintiffs and the City of Lebanon appeal. We have determined that the
trial court did not err by dismissing the plaintiffs’ claims for
nuisance. As for the plaintiffs’ claims of negligence, we have determined
that the trial court erred by awarding any of the plaintiffs damages.
This is because the plaintiffs’ claims for infliction of emotional
distress were dismissed prior to trial, and the dismissal of those claims
was not appealed. Further, the plaintiffs presented no proof of physical
or personal injuries associated with the emotional damages alleged and
they presented no proof of property damage. The only proof of damages
presented by the plaintiffs pertained to emotional suffering related to
the news that their loved ones would be disinterred and re-interred. Accordingly,
we reverse the trial court’s
award of damages to three of the plaintiffs. We affirm the trial court
in all other respects.
In Re: L.M.W and L.A.W - M2008-00786-COA-R3-PT View
Montgomery County - Father appeals the termination
of his parental rights to his two biological children, L.M.W. and L.A.W.
The trial court terminated his parental rights on the grounds of abandonment
by failure to visit or support, substantial noncompliance with the permanency
plan, and persistence of conditions. The trial court also determined that
termination of parental rights was in the children’s best interest.
We affirm the trial court’s ruling on the grounds of abandonment
by failure to support, substantial noncompliance with the permanency
plan, and a determination that termination of his parental rights is
in the children’s
best interests.
In the matter of: FLBH; FJH, JR.; FH; FLHH; AND FEH -
W2008-00214-COA-R3-PT View
Shelby County
Cases posted the week of 8/25/2008
Gilbert Waters and wife, Hixie Waters v.
Wesley Coker, M.D. - M2007-01867-COA-RM-CV View
Davidson County - In this medical malpractice
action, both parties appeal from a jury verdict entered in favor
of the defendant. The plaintiffs appeal the trial court’s
denial of the plaintiffs’ motion
to amend the Complaint to add a claim for informed consent and
the denial of the plaintiffs’ motions in limine to exclude
two of the defendant’s expert witnesses. In addition, the
plaintiffs contend the trial court committed reversible error
by failing to properly instruct the jury. We have determined the
trial court applied the correct legal standard when it considered
the plaintiffs’ motion to amend and that reasonable minds
could disagree as to the propriety of the trial court’s
decision; therefore, the trial court did not abuse it discretion
in denying the late filed motion to amend. We also find no error
with the trial court’s decision to deny the plaintiff’s
motions in limine, thus allowing the defendant’s expert
witnesses to testify. Further, we find the plaintiffs failed to
request an additional jury instruction after an incomplete charge
was given, thus the issue has been waived. Accordingly, we affirm
the trial court.
Valerie Ann Arnott Avaritt v. Thomas Warren
Avaritt - M2007-01804-COA-R3-CV View
Rutherford County - This is a divorce case. Husband/Appellant
appeals the trial court’s award
of $833 per month in alimony in futuro to Wife/Appellee. Finding that
this is a case for rehabilitative alimony, we modify the trial court’s
order, awarding Appellee/Wife $833 per month in rehabilitative alimony
for a period of five years. Affirmed as modified.
In Re: Estate of Mary Nell Dorsey - E2007-02410-COA-R3-CV View
Cocke County - In this probate case, John
D. Thacker filed a claim against the estate of Mary
Nell Dorsey, seeking reimbursement for various expenses
that he says he paid on Ms. Nell Dorsey’s
behalf, prior to her death in 2000. Mr. Thacker failed
to comply with a discovery order of the trial court. His
claim was dismissed. Mr. Thacker appeals. We affirm.
Veronica Monde Barone vs. Anthony F. Barone,
et al - E2006-01394-COA-R3-CV View
Cumberland County - This is a lawsuit filed
by Veronica Monde Barone (“Wife”)
seeking to execute on real property allegedly owned by her former
husband, Anthony F. Barone (“Husband”), in satisfaction
of a sizable judgment in favor of Wife entered against Husband
by a Canadian court. The property at issue is a farm located in
Cumberland County. In 1990, Husband’s mother owned the property.
In that year, she executed a quitclaim deed to the farm, leaving
the space for the grantee’s name blank. She handed the deed
to Husband, her only son. Wife claims that after she obtained
a judgment against Husband, he inserted the name of his son Frank
Barone (“Son”) on the deed as the grantee, and the
deed was then filed in the Register of Deed’s office. Wife
asserts that this was a fraudulent conveyance, that Husband still
owns the farm, and that the farm is subject to execution in partial
satisfaction of the judgment. Son claims the deed was valid and
he is the proper record owner of the farm. Following a trial,
the trial court agreed with Wife and held that the purported conveyance
of the farm to Son was fraudulent. Son appeals. We affirm.
In the Matter of: J.O., C.O., S.O., J.O. - M2008-00326-COA-R3-PT View
Wilson County - Mother appeals from a juvenile
court order terminating her parental rights to her three children.
Finding clear and convincing evidence to support the juvenile
court’s determination,
we affirm.
Lisa
Gail Lashlee v. Harper's Chrysler - M2007-00443-COA-R3-CV View
Dickson County - Lisa Gail Lashlee (“Customer”)
sued Harper’s Chrysler
(“Dealer”), a car dealership in Dickson, claiming Dealer
breached an extended service contract (or “warranty”) that
Customer had been awarded in an arbitration proceeding concerning a
vehicle that she had leased from Dealer. Customer argues that Dealer
wrongfully refused to perform work under the warranty. Dealer denies
any such wrongful refusal, and also asserts that it is not bound by
the warranty, which it says was issued by the manufacturer, DaimlerChrysler
(“Manufacturer”). The case was tried to a jury, which returned
a verdict for Customer in the amount of $21,492.45 – the $551.45
that she eventually paid to have repairs done, plus an additional $20,941.00,
which is approximately the amount of the lease payments that accrued
between the date of the alleged breach and the expiration of the lease.
Dealer appeals. We affirm the judgment as to liability, but vacate
as to damages, finding no material evidence to support the jury’s
verdict in the amount rendered. We remand for a new trial on the issue
of damages only.
Ervin D. Smith,
et ux Donna L. Smith v. Paul Evans, et ux Danielle Evans -
M2007-02855-COA-R3-CV View
Montgomery County - Owners of property brought suit
to terminate an ingress/egress easement across their land, contending
that the necessity for the easement no longer existed. Following a
trial, the Chancery Court ruled against the owners, finding that since
the easement was reserved in a recorded plat, it was not an easement
by necessity; consequently, the easement was not destroyed upon the
sale of the dominant estate. On appeal, the owners maintain that the
easement was destroyed at the end of the necessity. Finding the easement
to be express, we affirm the decision of the Chancery Court. Finding
the appeal not to be frivolous, no attorney’s fees are awarded.
In Re M.P.J. and N.R.J. - E2008-00174-COA-R3-PT View
Carter County - The trial court terminated
the parental rights of W.G.C. (“Father”)
to his twin daughters, M.P.J. and N.R.J. (“the Children”),
who were two years old at the time of trial. The trial
court found, by clear and convincing evidence, that several
grounds for terminating Father’s parental rights
existed and that termination was in the best interest of
the Children. Father appeals, challenging the trial court’s
finding that clear and convincing evidence of grounds to
terminate were established at trial. We affirm.
Joseph Bailey, et al vs. Blount County
Board of Education -
E2007-01028-COA-R3-CV View
Blount County - A nontenured teacher employed
by the Blount County Board of Education was suspended for
ten days without pay upon charges of inappropriate conduct.
Several months later, upon further charges of inappropriate
conduct, the Board terminated the teacher’s employment.
The teacher and his wife filed a complaint alleging injuries
as the result of actions and omissions of the Board with
respect to both the suspension and the termination. Upon
the Board’s
motion for summary judgment, the trial court dismissed
the complaint with prejudice upon the ground that the plaintiffs
failed to exhaust all administrative remedies before filing
suit, and, by separate order, upon its finding that the
plaintiffs were aware of this failure when they filed their
complaint, the trial court sanctioned the plaintiffs for
filing a frivolous complaint. After careful review, it
is our determination that the Board’s decision terminating
the teacher’s employment was void ab initio because
the Board denied the teacher due process by neglecting
to afford him a hearing prior to such termination. Accordingly,
we modify the trial court’s summary judgment with
respect to that portion of the complaint pertaining to
the termination to dismissal without prejudice upon the
ground that the matter complained of was not ripe for appeal,
and we further vacate the trial court’s order imposing
sanctions on the plaintiffs. We affirm the trial court’s
grant of summary judgment as to that portion of the complaint
pertaining to the teacher’s ten-day suspension upon
the ground that suit in that regard was barred under the
applicable statute of limitations.
In Re K.E.D.M. a/k/a/ K.E.D.S. - E2008-00150-COA-R3-P View
Hamblen County - The issue presented in
this parental termination case is whether it was shown
by clear and convincing evidence that termination was in
the best interest of the child. After careful review, we
hold that the evidence preponderates against the trial
court’s
finding that there was clear and convincing evidence that termination
was in the best interest of the child. Accordingly, we reverse
the judgment of the trial court and dismiss the petition to terminate.
Mary Polite v. Metropolitan Development
and Housing Authority - M2007-02472-COA-R3-CV View
Davidson County - Plaintiff appeals the Rule
12.02(6) dismissal of her petition for a common law writ of
certiorari which sought review of her termination from the Metropolitan
Development and Housing Agency. Plaintiff, an at-will employee
of the Agency, was terminated after an administrative hearing
officer found that she had violated Agency policy. After the
Agency filed a motion to dismiss for failure to state a claim
upon which relief can be granted, the trial court determined
the petition failed to state facts sufficient to satisfy the
pleading requirements of a common law writ. Viewing the facts
asserted in the petition in the light most favorable to the
plaintiff, we find the petition failed to state factual allegations
sufficient to state a claim that the Board acted illegally,
arbitrarily, or fraudulently, and thus, it failed to state a
claim upon which relief can be granted. We, therefore, affirm
the Rule 12.02(6) dismissal.
Metropolitan General Sessions Traffic Court v. Walter Cuozzo -
M2007-01851-COA-R3-CV View
Davidson County - Walter Cuozzo (“the defendant”)
was found guilty of traffic violations in general sessions court. He appealed
to circuit court but failed to comply with a local rule that provides “an
appellant [on an appeal from general sessions court] has forty five (45)
days to secure a trial date from the court.” Because of this failure,
the circuit court dismissed the defendant’s
appeal. We affirm.
John C. Filson and Angela H. Filson v. Wells Fargo Home Mortgage,
Inc. -
M2007-01842-COA-R3-CV View
Davidson County - The mortgagees filed suit,
charging the mortgagor with breach of contract for failure
to comply with terms of a note, deed of trust, and automatic
payment service plan pursuant to which the mortgagor agreed
to automatically debit the mortgagors’ bank account for monthly
payments. The jury found the mortgagor guilty of breach of contract and
awarded damages in the amount of $250,000. The trial court remitted this
damage award to $150,000. On appeal, the mortgagor argues that the trial
court erred by failing to grant the mortgagors’ motions for directed
verdict and for judgment notwithstanding the verdict on the ground that
the mortgagees were guilty of the first uncured material breach of contract,
by excluding evidence as a discovery sanction and by awarding the mortgagees
$150,000. The mortgagees contend that the mortgagor waived all issues
by not including them in its motion for new trial. After careful review,
we hold that 1) the mortgagor did not waive its issues for purposes of
appeal because the issues were included in the memorandum of law it incorporated
in the motion for new trial; 2) the trial court did not abuse its discretion
in excluding certain evidence as a discovery sanction upon our finding
that the mortgagor failed to explain why the excluded evidence was not
timely provided to the mortgagees or to establish its importance at trial;
3) the trial court did not err in failing to grant the mortgagor’s
motions for directed verdict and judgment notwithstanding the verdict
upon our finding that the mortgagor was guilty of the first uncured material
breach of contract by failing to timely institute its automatic payment
service plan; and 4) in compliance with the mortgagor’s request,
this case is remanded for a new trial solely on the issue of damages upon
our finding that the trial court’s
award of damages in the amount of $150,000 is not supported
by the evidence.
In the Matter of: G.L.T. - M2008-00582-COA-R3-PT View
Franklin County - Tennessee Department of
Children Services filed a petition in the Juvenile Court
for Franklin County in March 2007 to terminate parental rights.
The mother surrendered her parental rights in April 2007,
but no adjudication as to the father was made because his
whereabouts were unknown. Father was subsequently located
and following a trial, the court terminated Father’s
parental rights based on his incarceration under a ten year
sentence imposed when the child was under eight years old,
and finding that termination was in the best interest of
the child. Finding no error in the ruling of the juvenile
court, we affirm.
Moore & Associates, Inc. v. Metropolitan Board
of Zoning Appeals -
M2007-02078-COA-R3-CV View
Davidson County - Zoning administrator denied
a waiver of the Metropolitan Zoning Code’s landscape buffer requirement
and the Board of Zoning Appeals upheld the administrator’s interpretation
of the ordinance. Plaintiff contractor appealed to the circuit court,
which determined that the zoning administrator’s interpretation
of the ordinance was incorrect and granted the waiver. The Board of Zoning
Appeals appealed. The trial court’s
interpretation of the ordinance is affirmed, but the decision
to grant the waiver is vacated, and the case is remanded to
the trial court with instructions to return the matter to the
board for further action.
Ernestine C. Ridley v. Clemons Watson, et al -
M2007-01241-COA-R3-CV View
Davidson County - This is a partition case
between tenants in common. Appellant herein maintained sole
possession of the property, although Appellee was not excluded
from the property, and did not abandon her interest. Appellee
sought partition, reimbursement for rents, and reimbursement
for Appellee’s use of the property. Appellant counter-claimed for
reimbursement for improvements to and maintenance of the property, and
for reimbursement for loans that Appellant, in his sole discretion, had
made. The trial court granted the partition and ordered that: (1) the
remaining mortgage debt be paid out of Appellant’s share, (2) Appellant
was entitled to $10,000 reimbursement for maintenance and repairs to the
property, (3) Appellee was not entitled to rents, (4) Appellee was not
entitled to reimbursement for Appellant’s
sole use of the property, and (5) responsibility for the tax
liens on the property and penalties thereon should be equally
divided between the parties. Finding no error, we affirm
William B. Hughes, Jr. v. Patsy M. Hughes -
M2007-02216-COA-R3-CV View
Montgomery County - This is a divorce case.
Husband/Appellant appeals, alleging that the trial court erred
in: (1) denying his request for equal parenting time, (2) awarding
rehabilitative alimony to Wife/Appellee, (3) imputing income
of $6.00 per hour to Wife/Appellee for purposes of setting
child support, and (4) awarding Wife/Appellee’s attorney fees as
alimony in solido. Wife/Appellee asserts error in the trial court’s
awarding Husband/Appellant certain property, and seeks attorney’s
fees for this appeal. We affirm.
Jessica Stacey v. Floyd Clifford Archer, Jr. -
M2007-02829-COA-R3-CV View
Coffee County - Mother appeals award of joint
custody on the basis that the court applied a presumption in
favor of joint custody. While the trial court may have applied
an erroneous presumption favoring joint custody, we conclude
that use of the presumption was harmless as the evidence does
not preponderate against the trial court’s award of joint
custody.
Cases posted the week of 8/18/2008
Kristi Leanne Cosner v. Charles Arthur Cosner -
E2007-02031-COA-R3-CV View
Loudon County - In this post-divorce case, the
primary issue presented is whether the evidence preponderates
against the trial court’s determination that custody of the parties’ two
children should be changed from the mother to the father. After a brief
hearing at which neither the mother nor her counsel was present, the trial
court applied a comparative fitness analysis without discussing or ruling
upon whether a material change of circumstances had occurred. The trial
court held it to be in the children’s best interest to transfer
custody from the mother to the father because the mother had allegedly
been living with a man to whom she was not married and who was separated
from, but still married to, someone else. We hold that the evidence does
not establish a material change of circumstances justifying a change in
custody in the absence of proof that the mother’s alleged conduct
has affected the children in an adverse way. We, therefore, reverse the
judgment of the trial court with instructions to the trial court to dismiss
Father’s
counter-petition for change of custody and remand for such further
action as may be necessary consistent with this opinion.
State of Tennessee and Knox County, Tennessee ex rel. Bee Deselm,
et al v. Knox County, Tennessee, et al. -
E2007-00913-COA-R3-CV View
Knox County - This case is one of many in a long-running
controversy surrounding the structure and makeup of the Knox County
government. The plaintiffs filed this action during the early stages
of that controversy, seeking a declaratory judgment regarding the validity
of the charter of the Knox County government. That issue has since
been decided by the Supreme Court in a separate case. The trial court
granted the defendants’ motions to dismiss. We hold that all
of the issues raised in the pleadings in this case are now moot. Accordingly,
we affirm.
Homebuilders McGee & Story, LLC, et al v. Henry Buckner -
M2008-00291-COA-R3-CV View
Davidson County - This is the second appeal
of a contract dispute between a homeowner and the contractor
he engaged to make improvements to his home. The homeowner contends
that the trial court erred by awarding the contractor attorney’s
fees on remand following the first appeal because the contractor waived
its claim of attorney’s fees, the contractor is judicially estopped
to claim attorney’s fees, and the trial court lacked jurisdiction
to award attorney’s fees following remand. We have determined the
contractor had not waived its claim and it was not judicially estopped
to assert a claim for attorney’s fees. We have also determined
that the trial court had jurisdiction to award attorney’s
fees pursuant to the contract following remand of the first appeal.
Jackson O'Dell, Jr. vs. Jackson C. O'Dell, III, et al -
E2007-02619-COA-R3-CV View
Knox County - Jackson O’Dell, Jr., (“Plaintiff”)
sued Jackson C. O’Dell, III and Calvin David O’Dell (“Defendants”)
alleging civil conspiracy and outrageous conduct. Defendants filed a motion
to dismiss, which the Trial Court granted. Plaintiff appeals to this Court.
We affirm the dismissal of Plaintiff’s claims for civil conspiracy
and outrageous conduct, but hold that Plaintiff did state a claim for
alleged violations of the Tennessee Limited Liability Company Act, Tenn.
Code Ann. § 48-201-101
et seq.
Parrott Marine Systems, Inc. vs. Shoremaster, Inc., and Galva
Foam Marine Industries, Inc. -
E2007-02789-COA-R3-CV View
Knox County - In this breach of contract dispute,
all parties appeal from the Trial Court’s Judgment. We
affirm.
The Estate of Robyn Butler and LaChrisha Buford, Alice Butler
and as executor and mother, and Britt Ross v. Lamplighter Apartments,
et al -
M2007-02508-COA-R3-CV View
Davidson County - This wrongful death and personal
injury action arises from a fatal fire at an apartment complex.
The defendants are Nashville Electric Service and the owner and
operator of the apartment complex. A Complaint, filed on behalf
of the plaintiffs, the estates of two deceased children, the
decedents’ mother, and her fiancé, was filed on the anniversary
of the fire, and the Clerk of the Circuit Court immediately issued the
summons to be served on each defendant and handed them to the plaintiffs’ counsel
as requested. Counsel for the plaintiffs, however, made a deliberate decision
to prevent service of summons on any of the defendants for more than eleven
months after the Complaint was filed. Thereafter, the defendants filed
motions for summary judgment on multiple grounds including the defense
that the claims were barred by the one-year statute of limitations. The
trial court granted the defendants’ motions
for summary judgment. We affirm finding the claims are barred
by the applicable statutes of limitations due to the fact that
counsel for the plaintiffs intentionally caused the delay of
prompt service of summons, which rendered the initial filing
of the Complaint ineffective.
State of Tennessee, ex rel. Michelle Strickland v. Terry Copley -
W2007-01839-COA-R3-CV View
Gibson County - This appeal arises from post-divorce
proceedings involving child support obligations. The original
divorce and support orders were entered in Michigan. The mother
subsequently moved to North Carolina, and the child support order
was transferred to that state. The father moved to Tennessee
and became delinquent in making his support payments. The mother
began to receive public assistance and executed an income assignment
assigning to North Carolina the right to receive the back child
support owed by the father. Upon request by North Carolina, Tennessee
then brought suit to enforce the North Carolina order. In the
Tennessee proceedings, the trial court changed custody from the
mother to the father and ordered the mother to pay the father
child support. In the process, the trial court determined that
the mother owed back child support to the father and then used
this amount to setoff the obligation owed by the father to North
Carolina. For the reasons stated herein, we determine that a
setoff cannot be used to deprive North Carolina of recoupment
of its public assistance. The judgment below allowing the setoff
is therefore vacated, and this case is remanded for further proceedings
consistent with this opinion.
Vicky Jones, Individually and as the daughter
of Marie Hurst, Deceased, also as representative of
the heirs of the estate of Marie Hurst, and/or for
the use and benefit of the heirs and estate of Marie
Hurst, Deceased, v. Kindred Healthcare Operating, Inc., et al. -
W2007-02568-COA-R3-CV View
Shelby County - We here review a trial court’s
denial of the defendants’ motion
to compel arbitration. Each defendant is alleged to have been involved
in the ownership and operation of a nursing home facility at which
the mother of the plaintiff was a resident prior to her death. The
mother had, several years earlier, executed a general durable power
of attorney naming one of her daughters as her attorney-in-fact.
Later that daughter signed a letter purporting to give another of
the mother’s daughters certain powers. This daughter then secured
the admission of their mother to the nursing facility in question
here and in the admissions process signed an arbitration agreement.
The defendants contend that her signature is effective to require
arbitration of the claims raised in this suit. We conclude that the
signing daughter did not possess the requisite authority to enter
into a binding arbitration agreement. Accordingly, we affirm the
trial court’s decision and remand for further proceedings.
Meta-Sue Jones Woodall v. Jethero Jackson
Woodall, Jr., - W2007-01880-COA-R3-CV View
Shelby County - This appeal arises from a divorce
action. The issues presented on appeal relate to the trial court’s
classification and division of the parties’ property. We affirm.
In Re: Estate of William Anthony Lucy
Rita Clark, Shelby County Assessor
of Property, et al. v. Naomi Schutte, As Administratrix of the
Estate of William Anthony Lucy - W2007-02803-COA-R3-CV View
Shelby County - The Shelby County Assessor and Shelby
County moved to intervene in a probate case in order to amend a prior
order previously entered adjudicating a claim made against the decedent’s
estate by the City of Memphis for delinquent personal property taxes.
The would-be intervenors claimed as their interest in the case the
possibility that the probate court’s decision might be deemed
preclusive in a tangentially related chancery proceeding. The probate
court denied the motion to intervene and ordered that the movants
pay the estate’s attorney’s fees. We conclude that the
movants did not possess a substantial legal interest in the litigation
warranting their intervention under Tenn. R. Civ. P. 24.01, and we
further conclude that the probate court did not abuse its discretion
in finding the motion to be untimely. Accordingly, we affirm the
probate court’s
denial of the motion to intervene as well as its denial of a companion
motion made under Tenn. R. Civ. P. 60.02. We, however, vacate its
decision awarding the estate attorney’s fees.
Jane Stevenson Kalp Devereaux vs. Jerome W. Devereaux -
E2007-02189-COA-R3-CV View
Jefferson County - Husband appeals the trial court’s
decision granting his wife a divorce and dividing the personal property
of the parties. On appeal, the husband raises several issues. Upon review,
we conclude that the husband failed to raise any of these issues with
the trial court and failed to provide a transcript or an adequate statement
of the evidence for us to review as to the trial court’s
factual findings. The judgment of the trial court is affirmed.
Michael Lee Riddle vs. Michelle Marie Woods - E2007-01521-COA-R3-CV View
Greene County - The primary issue presented in
this case is whether the evidence preponderates against the trial
court’s determination that a material change in circumstances had
occurred and that it was in the child’s best interest that custody
be changed from the mother to the father. Following a hearing on the petition
filed by the father, the trial court found there had been a material change
in circumstances based on the mother’s actions in taking the child
to numerous doctors and mental health professionals, including a mental
hospitalization facility, and falsely claiming that the child suffered
from various mental and physical ailments, to such extent that the trial
court agreed with an expert psychologist’s opinion that the mother
had committed