Cases posted the week of
12/29/2003
Laney Brentwood Homes v. Earl
Pechtel - W2003-00284-COA-R3-CV View
Shelby County -
This case arises from the denial of Plaintiff's application for a building
permit. Plaintiff appealed the Building Inspector's denial of said permit to
the Board of Zoning Appeals, which upheld the denial. Plaintiff then appealed
to the Chancery Court of Shelby County by way of common-law writ of certiorari.
Again, the denial of the permit was affirmed. Plaintiff then sought our review
of the denial. For the following reasons, we dismiss the instant appeal on the
basis of mootness.
Bobby Essary v. John
Essary - W2003-00299-COA-R3-CV View
Gibson County
- This case involves a Chancery Court's denial of the Appellant's Motion to Set
Aside Judgment pursuant to Rule 60.02 of the Tennessee Rules of Civil
Procedure. For the following reasons, we affirm the lower court's denial of
this motion and remand for further proceedings.
Ursala Wimpee v. Grange Mutual -
W2002-02795-COA-R3-CV View
Shelby County -
This appeal, from a grant of summary judgment, involves the interpretation of a
homeowner's insurance policy. The lower court found that the policy covered
water damage caused by the back-up of the neighborhood's exterior sewers and
drains. For the following reasons, we reverse the judgment of the lower court
and remand for further proceedings.
Phillip
Lucas v. State; Michael Collins v. State - M2002-02810-COA-R9-CV
View
These consolidated cases
present two separate factual situations involving alleged liability of the
state under the Tennessee Claims Commission Act, Tennessee Code Annotated
section 9-8-301, et seq., for dangerous conditions existing on two separate
highways. In both cases the State asserted in defense discretionary function
immunity. Because this defense is central to both cases, the Claims Commission
consolidated the cases for consideration of the applicability of discretionary
function immunity. In an en banc order, the Commission, construing Tennessee
Code Annotated section 9-8-307(d) and cases based upon that section, overruled
the State's motions for summary judgment. We hold that under the plain and
unambiguous provisions of Tennessee Code Annotated section 9-8-307(d) the State
is not entitled to assert discretionary function immunity in actions under the
Tennessee Claims Commission Act and affirm the judgment of the Claims
Commission.
Original Christ Temple Church v.
Alexander & Assoc. - M2002-02117-COA-R3-CV View
Davidson County
- Between 1989 and 1991, appellant Original Christ Temple Church ("Church")
contacted appellee Alexander & Associates, Inc. ("Alexander") to procure an
insurance policy to cover its church building and contents in the event of
loss. Church claims the original policy with Aetna Casualty and Surety
guaranteed Church "100% replacement cost coverage." In 1993, Alexander ceased
writing insurance policies for Aetna, and Alexander procured a replacement
policy for Church through a new insurer. On November 3, 1999, Church's building
was completely destroyed by fire. Church filed a complaint against Alexander on
January 4, 2001 alleging negligence based on Alexander's failure to advise
Church of changes in its insurance coverage. Church additionally sought relief
on grounds of fraud, intentional interference with contract rights, fraudulent
concealment, negligent misrepresentation and breach of fiduciary duty. Church
claimed its new policy issued by Alexander in 1993 did not guarantee the same
amount of replacement cost coverage as its original policy. Alexander filed an
answer on February 7, 2001 denying all allegations and raising an affirmative
defense of statute of limitations. On June 3, 2002, Alexander filed a motion
for summary judgment asserting Church's complaint was time-barred by the
applicable statute of limitations. In an order entered August 15, 2002, the
trial court granted Alexander's summary judgment motion finding the statute of
limitations, as set forth in T.C.A. § 28-3-105, expired prior to Church's
filing of its complaint. Notice of this appeal soon followed. For the reasons
set forth below, the order of the trial court granting summary judgment based
on the applicable statute of limitations is reversed.
Ronald E. Brown v. Balaton Power, Inc. -
M2001-02770-COA-R3-CV View
Williamson
County - This case involves the issue of whether parties contracted
for arbitration to be the sole method of dispute resolution with regard to
contract disputes. We find the intent of the parties unclear due to an
irreconcilable conflict between two sections of the contract dealing with
dispute resolution. We, thus, affirm the trial court's ruling that Plaintiff
cannot be compelled to arbitrate.
Spring Hill,
LP v. Board of Equalization, et al - M2001-02683-COA-R3-CV
View
Davidson
County - Taxpayers appeal their property tax assessments for the1998
tax year. All of the properties in dispute receive federal income tax credits
authorized by § 42 of the Internal Revenue Code of 1986, under the Federal
Low Income Housing Tax Credit Program. Taxpayers complain that the county
assessors improperly included the present value of the federal tax credits in
the valuations of their low-income housing properties, thereby making the
assessments too high. The trial court affirmed the decisions of the State Board
of Equalization, finding that the tax credits were properly included in the
valuations. In addition, Taxpayer Acorn challenges its reclassification from
residential to commercial for property tax purposes. The trial court affirmed
Acorn's reclassification. We affirm the judgment of the trial court.
Jimmy Conklin v. William Holland -
W2003-00334-COA-R3-CV View
Shelby County
- This case involves an appeal from the trial court's grant of defendant's,
Lewis E. Holland (Lewis), motion for failure to state a claim upon which relief
can be granted. The complaint against Lewis stated causes of action based on
theories of premises liability, partnership liability, negligent entrustment,
ultra hazardous activity, and negligence per se based on violations of 21
U.S.C. § 856 (2003). We affirm.
Amy
Butterworth v. John Butterworth - W2003-00983-COA-R3-CV
View
Dyer County
- This lawsuit arises from an accident in which a minor child sustained
injuries while assisting his father at father's workplace. The child's mother
brought this action as next of kin against the child's father and father's
employer. The trial court awarded summary judgment to Defendants based on the
doctrine of parental immunity. We reverse and remand.
Mary Alford v. Earl Lumley - W2002-03051-COA-R3-CV
View
Dyer County
- This lawsuit emanates from a 1989 sale of land, which included a portion of
land to which the seller did not have title. Two subsequent assignees of the
original buyer filed a cause of action against the seller, seeking rescission
or reformation of the 1989 transaction and alternate relief. The trial court
awarded plaintiffs' damages and declined to award equitable relief. We affirm.
Sheila Jones v. Lloyd Jones -
W2003-01676-COA-R3-CV View
Hardin County -
This is an appeal from a Final Order granting the parties a divorce and
dividing the marital property. Wife appeals and asserts that the division of
marital property is inequitable. We affirm.
Walter G. Efird v. The Clinic of Plastic and
Reconstructive Surgery - W2002-01474-COA-R3-CV
View
Shelby
County - This is an employment case. The plaintiff physician was an
employee of the defendant plastic surgery clinic. The employer clinic opened a
satellite office in a suburb, staffed by the plaintiff physician. Without the
knowledge of the employer clinic, the physician began directing some of the
funds collected from patients to a separate bank account. The physician also
took other steps toward opening his own practice, including having insurance
forms filled out so that funds went to his separate bank account rather than to
the employer clinic. When the employer clinic learned of the physician's
activities, it terminated his employment. The physician sued the employer
clinic for the fees generated by him during his employment, and the clinic
counterclaimed for fraud, breach of fiduciary duty and breach of contract. A
special master was appointed to determine the amount of funds both parties had
collected. The parties filed cross motions for summary judgment. The trial
court granted summary judgment in the favor of the physician, finding no fraud
or breach of fiduciary duty, only dissolution of their contractual
relationship. The special master made further findings on the financial issues,
and a judgment was entered requiring the employer clinic to pay damages to the
physician. The employer clinic appeals. We reverse the trial court's grant of
summary judgment to the physician. The denial of the employer clinic's motion
for summary judgment is reversed in part as to the physician's breach of the
duty of loyalty as an employee and as to the breach of his employment contract,
and factual issues remain as to the physician's status as an officer or
director and his fraudulent intent.
Debbie
Byrd, Lois Stafford, Tabitha Stewart v. State - W2003-00302-COA-R3-CV
View
This is a sexual harassment
case. The three plaintiffs filed a suit in the Claims Commission against the
University of Tennessee, asserting numerous legal theories. The defendant filed
a motion to dismiss. The Claims Commission granted the motion to dismiss except
as to the claim of one of the plaintiffs for breach of contract. The plaintiffs
appeal. We dismiss the appeal, finding that the plaintiffs did not appeal from
a final order.
Maria Krahn v.Todd
Kollasch - W2002-02931-COA-R3-CV View
Shelby County
- Mother and Father were declared divorced by the trial court pursuant to an
absolute decree of divorce that incorporated, by reference, a Permanent
Parenting Plan designating Mother as the primary residential parent to the
parties' minor child. Father appeals the parenting plan's designation of Mother
as the primary residential parent. We affirm.
Michael Shoemake v. Omniquip International -
W2002-03139-COA-R3-CV View
Shelby County
- This is a products liability wrongful death case. Plaintiffs' decedent died
when he fell from a job-rigged box that was being lifted by a telescoping fork
lift to the fourth floor of a job site. Plaintiffs sued the lessor, the
manufacturer of the lift, and the manufacturer's parent company, asserting that
the lift was defective and unreasonably dangerous, and that the manufacturer
and parent company failed to adequately warn. The trial court granted summary
judgment to all three Defendants. Plaintiffs appeal. We affirm.
Ronald
Fowler, et ux. v. Augustine Henderson, III - W2002-02529-COA-R3-CV
View
Shelby
County - This is an automobile rear-end collision case resulting in
alleged personal injuries. Plaintiffs' vehicle, stopped in a line of traffic,
was struck from the rear by one defendant's vehicle, which had been hit from
the rear by another defendant. The answer of defendants in the rear most
vehicle affirmatively asserted the comparative fault of a tree service
corporation causing the traffic-stop by blocking the road without warning.
Plaintiffs amended their complaint to name the tree service company. The trial
court granted the tree service company summary judgment and the defendants,
asserting the comparative fault of the tree service company, appeal. When the
case proceeded to trial as to the remaining defendants, plaintiffs voluntarily
dismissed the case. The same defendants appealed the order of the trial court
allowing a voluntary non-suit. Since the dispositive issue in both cases is
whether the trial court erred in granting summary judgment to the tree service
company, the cases were consolidated on appeal. We affirm.
Fidelity & Guaranty Life Ins.v. Corley &
Patterson - W2002-02633-COA-R9-CV View
Henry County -
This is an interpleader action involving the doctrine of former suit pending.
In 1995, the decedent purchased a term life insurance policy from the defendant
insurance company and named his wife as the primary beneficiary. In 1999, the
decedent changed the named beneficiary from his wife to another woman. In
September 2001, the decedent died. At his death, the other woman was still the
named beneficiary under the policy. The named beneficiary filed a complaint in
the chancery court in Humphreys County against the insurance company seeking
payment of the proceeds of the life insurance policy. The wife, however, had
previously made a claim with the insurance company for the same proceeds.
Consequently, less than two weeks after the first lawsuit was filed, the
insurance company filed the interpleader action below in Henry County against
the wife, the named beneficiary, and the estate, seeking a determination of the
rightful beneficiary of the proceeds. The named beneficiary moved for dismissal
of the interpleader action, based on the doctrine of prior suit pending. The
trial court denied that motion, finding that the doctrine of prior suit pending
did not apply in this situation. The named beneficiary was granted permission
to file this interlocutory appeal from the order denying the motion to dismiss.
We now reverse, concluding that this interpleader action should be dismissed
based on the doctrine of prior suit pending.
Linda Lefkowitz Graber v. Lawrence Graber &
Michael Parker v. Steve Graber - W2003-01180-COA-R3-CV
View
Shelby
County - This case involves interpretation of a trust agreement. The
husband and wife entered into a marital dissolution agreement providing for the
creation of a trust. The MDA said that the trust would be used for the college
expenses of the parties' children. The trust agreement said that the children's
college educations would be funded by the principal of the trust, but also said
that the trust principal should be used to benefit the wife, and that providing
for the wife's needs was the primary purpose of the trust during her life. The
wife sought a disbursement of trust funds for her benefit. The trustees
disagreed on the primary purpose of the trust and whether such a disbursement
would be appropriate, and filed a petition in the trial court below seeking
instructions. The trial court held that the trustees were permitted to use the
funds to benefit the wife and should not factor in the children's potential
college expenses. One of the trustees appeals. We affirm in part and reverse in
part, holding that the trustees may disburse the trust funds to benefit the
wife, but must also keep in mind the children's future college expenses.
William B. Tanner v. John Harris -
W2002-02634-COA-R3-CV View
Shelby County
- This case involves the collateral attack of a judgment. In the underlying
proceedings, the defendant filed a lawsuit in general sessions court against
the plaintiff individual. Process was served on the registered agent to accept
service of process for the plaintiff's corporation. The plaintiff did not
appear in general sessions court, and a default judgment was rendered in favor
of the defendant. This was not appealed. The plaintiff then filed this separate
lawsuit in chancery court to set aside the general sessions default judgment,
claiming he was not served with process in the general sessions proceedings.
The chancery court issued an order setting aside the general sessions judgment.
The defendant appeals. We affirm, holding that the chancery court had
jurisdiction to determine whether service was proper and finding no abuse of
discretion on the part of the chancery court in setting aside the general
sessions default judgment.
Donald F.
Hungerford v. State - W2002-02221-COA-R3-CV View
This case involves the dismissal
of a claim for the claimant's failure to respond to an order to show cause. The
claimant filed a lawsuit in circuit court, as well as a claim in the Claims
Commission, alleging medical malpractice by state-employed physicians treating
his wife. The claimant moved to transfer the Claims Commission claim to circuit
court. The claimant was ordered by the Claims Commission to file a more
definite statement. He failed to do so, and failed to respond to further orders
by the Claims Commission. Consequently, the claim was dismissed. The claimant
moved to set aside the dismissal, arguing that his failure to respond was
justifiable due to the confusion created by renovation of his attorney's
office. The Commission denied the motion. We affirm, holding that the
Commission did not abuse its discretion in declining to transfer the claim and
in denying the motion to set aside dismissal of the claim.
James Jackson vs. Jackson, Johnson & Murphey -
E2002-02476-COA-R3-CV View
Hamilton County
- This litigation is between a former shareholder - later employee - of the
defendant accounting corporation. These parties entered into an employment
contract together with a deferred compensation agreement. After two years, each
party claimed the other was in material breach: the Plaintiff asserted a breach
because, inter alia, the Defendant refused to treat him as an employee, while
the Defendant asserted a breach because the Plaintiff prepared a number of tax
returns [66], inter alia, for clients of the firm without recourse to the firm.
The trial court found that no mutual material breaches had occurred, and that
the Plaintiff was entitled to recover the balance of his deferred compensation
which had been terminated by the Defendant owing to the Plaintiff's alleged
breaches. The judgment is modified.
Alma
Neiswinter v. Mark Murray - M2002-02345-COA-R3-CV
View
Williamson
County - This appeal involves modification of child custody and child
support, and contempt for failure to pay the support. When the mother and the
father were divorced, the mother was designated as the primary residential
parent. Three years later, custody was changed to the father. Subsequently, the
mother filed a petition for change of custody and for modification of her child
support obligation. The State later filed a petition on behalf of the father to
hold the mother in criminal contempt for failure to pay child support. After a
trial on both the mother's petition for change in custody and support and the
State's petition for contempt, the trial court denied the mother's petition for
custody, reduced the support retroactively because one child no longer lived
with the father, and granted the State's petition, holding the mother in
contempt. As punishment for the contempt, the trial court sentenced the mother
to forty days in prison. From that order, the mother now appeals. We affirm the
trial court's determinations regarding child custody and child support. We
reverse the trial court's finding of criminal contempt, finding that the mother
had in fact paid all of the required child support, based on the trial court's
retroactive order reducing the child support obligation.
James Pylant v. Karen Spivey - M2002-00602-COA-R3-CV
View
Giles
County - This appeal involves a dispute over the extent of a father's
obligation, under a provision in a property settlement agreement, to pay for
his daughter's college education. The daughter chose to attend an expensive
private college. The trial court found that father should pay tuition
equivalent to the cost of an out-of-state public university. Both parties
appealed. We affirm the trial court's decision that the father is obligated to
pay reasonable costs, but vacate the judgment because there is insufficient
proof of such costs.
Edward Silva v. Albert
Buckley, Jr. - M2002-00045-COA-R3-CV View
(Dissent) - View
Williamson
County - This is a dispute between an attorney and his client over the
attorney's fee. The trial judge held that the parties agreed that the attorney
would be entitled to an enhanced fee if he obtained a good result in the
client's divorce. We affirm that interpretation of the agreement and the amount
set by the trial judge as reasonable fee.
Lynn Raiteri Ex Rel. Mary Cox v. NHC Healthcare -
E2003-00068-COA-R9-CV View
Knox County -
Lynn Raiteri, as the daughter and next friend of the late Mary Helen Cox ("Mrs.
Cox"), sued NHC Healthcare/Knoxville, Inc. ("the defendant"), as well as
others, for the wrongful death of Mrs. Cox, whose death allegedly resulted from
improper care at the defendant's nursing home. We granted the plaintiff's Tenn.
R. App. P. 9 application for an interlocutory appeal in order to review the
trial court's order granting the defendant's motion to compel mediation and
arbitration pursuant to the dispute resolution procedures contained in the
defendant's nursing home admission agreement. We reverse.
Children's Services v. L.L.T.- E2003-00501-COA-R3-CV
View
Hamilton County
- The trial court terminated the parental rights of L.L.T. ("Mother") with
respect to her minor child, J.C.T. (DOB: January 31, 2002), a male. Mother
appeals, arguing that the evidence preponderates against the trial court's
findings, by clear and convincing evidence, (1) that statutory grounds for
termination exist and (2) that termination is in the best interest of the
child. We affirm.
Meaji Nisley Lockmiller v.
Mark Lockmiller - E2002-02586-COA-R3-CV View
McMinn County -
In this divorce case, the parties contested, among other things, the issues of
divorce and the custody of their minor children, Victoria Grace Lockmiller
(DOB: August 27, 1994) and James Roman Lockmiller (DOB: November 24, 1998).
Expressing its belief that Mark Douglas Lockmiller ("Father") would not tell "a
knowing untruth," the trial court granted him a divorce from Meaji Lynn Nisley
Lockmiller ("Mother") on the ground of inappropriate marital conduct and
designated him as the primary residential parent of the parties' children. Wife
appeals, contending that the evidence preponderates against the trial court's
award of primary custody to Father. We affirm.
Patricia Lyman v. Lawrence James -
E2002-02859-COA-R3-CV View
Hamilton County
- After over thirty years of marriage, Patricia A. Lyman ("Wife") left Lawrence
A. James ("Husband") and moved to the state of Washington and began living with
her new boyfriend. After Husband learned of Wife's affair, the parties agreed
to a divorce based on irreconcilable differences and entered into a marital
dissolution agreement ("MDA"). Both parties signed the MDA before a Notary
Public, but neither party was administered an oath prior to his or her signing.
The MDA provided that Husband would receive the entire amount of his pension.
Over six months after the parties were granted a divorce, Wife filed a new
lawsuit claiming she gave up any claim to Husband's pension because of
Husband's fraud and/or misrepresentations. Wife also claimed the court which
granted the divorce lacked personal jurisdiction to enter the final divorce
decree because neither Husband nor Wife were administered oaths prior to
signing the MDA, which Wife claimed resulted in the MDA not being properly
notarized. The Trial Court concluded the failure of the Notary Publics to
administer oaths did not render the MDA invalid. The Trial Court also concluded
Wife failed to meet her burden of proving fraud and/or misrepresentations on
the part of Husband. Wife appeals, and we affirm.
Lynn Blevins v. Lester Blevins -
M2002-02583-COA-R3-CV View
Sumner County
- This appeal arises from Wife's complaint for divorce. Based on Husband's
failure to file an answer, Wife filed a motion for default and notice of
hearing. Husband attended the hearing pro se and was afforded the opportunity
to continue the hearing to retain legal counsel but declined to do so. After
receiving testimony, the trial court awarded Wife a divorce, divided marital
property and awarded Wife rehabilitative alimony for 60 months. Husband
appeals, asserting that the trial court's division of marital property was not
fair and equitable and that Wife did not provide proof sufficient to establish
a proper basis for an award of rehabilitative alimony. We reverse and modify in
part the division of marital property and indebtedness and reclassify the
alimony from rehabilitative to in solido. In all other respects, we affirm the
trial court.
Donald Britt v. Roxanne Howell
- M2002-03070-COA-R3-CV View
Maury County -
The parties are adjacent commercial landowners of two story buildings with the
second floors of their buildings being serviced by a common stairway between
the two properties. The dispute involves use of the stairway and storage
closets under and over the stairwell. The trial court held that the stairway
was a common stairway, owned in equal undivided interests by the parties as was
the upper floor storage area. The trial court further held that the lower floor
storage area belonged exclusively to Appellees. We affirm the judgment of the
trial court.
Conan Clark, Jr. v. Carol
Clark - M2002-03071-COA-R3-CV View
Rutherford
County - A divorced mother of two girls sent a letter to her former
husband, declaring her intention to move with the children to Virginia in order
to marry her new fiancé. The father filed a petition objecting to the
relocation and asking for a change of custody. The trial court held that under
the provisions of Tenn. Code Ann. § 36-6-108, the mother was entitled to
relocate once she remarried. We affirm.
In Re:
D.D.K., D.M.M., and T.J.M., Jr. - M2003-01016-COA-R3-PT
View
Montgomery
County - This appeal involves a petition filed by the Department of
Children's Services to terminate the parental rights of Father to his two minor
children. The trial court granted the petition and Father appeals the decision.
Because we find the petition was improperly granted, we vacate and remand.
Eleonora Kogan. v. Tennessee Board of
Dentistry - M2003-00291-COA-R3-CV View
Davidson County
- In this case we are asked to determine the type of notice required to be
given a defendant in a contested case hearing before a state administrative
agency. We determine that Tennessee Compilation of Administrative Rules and
Regulations 13604-1-.06 applies and requires personal service, return receipt
mail, or, in the event of evading service, personal service with a person at
the parties' dwelling place. In the case at bar, service of notice of the new
trial date was made through regular mail only. This method of service is
insufficient. The decision of the Board of Dentistry is vacated, and the case
is remanded.
Nashville & Davidson County
v. Margaret Hudson - M2002-02847-COA-R3-CV View
Davidson County
- This case involves an appeal from the trial court's grant of Appellee's
motion for summary judgment. Appellee filed suit seeking to enjoin Appellant to
remove vinyl siding that she had installed on her house in violation of a
historic zoning ordinance. Appellant counter-complained alleging that the
ordinance was void and unenforceable on grounds that the ordinance was
unconstitutional and never properly adopted. Appellee subsequently moved for
summary judgment which the trial court granted. We affirm.
Govindaswamy Nagarajan v. Michael E. Terry -
M2001-01480-COA-R3-CV View
Davidson County
- This appeal involves a dispute between a lawyer and his former client
regarding unpaid fees. After the client sued the lawyer for malpractice in the
Circuit Court for Davidson County, the lawyer counterclaimed for unpaid fees.
The trial court granted the lawyer's summary judgment motion and dismissed the
malpractice claims. Thereafter, the trial court conducted a bench trial on the
lawyer's counterclaim and awarded the lawyer a $53,884.86 judgment. The former
client asserts on this appeal that the trial court erred by denying his request
for a continuance, granting a judgment by default on the question of liability,
denying his request for a jury trial, and considering expert evidence regarding
the reasonableness of the lawyer's fee without affording him the opportunity
for cross-examination. We affirm the judgment.
Inez Seals and Terry Hurd v. Life Investors
Insurance - M2002-01753-COA-R3-CV View
Sequatchie
County - This is a case involving the reformation of a settlement
agreement terminating claims on two policies between plaintiffs and the
defendant insurance company. The trial court refused to reform the settlement
agreement and denied defendants their attorney's fees. For the following
reasons, we affirm in part, reverse in part, and remand this case for further
proceedings.
Earl M. Shahan v. Franklin
County - M2002-00725-COA-R3-CV View
Franklin
County - This case involves a dispute between Franklin County and the
developer and residents of a subdivision over the maintenance of roads in the
subdivision. After the county declined the developer's public dedication of the
roads and denied applications for building permits in the subdivision because
of inadequate roads, the developer and several property owners filed separate
suits against the county in the Chancery Court for Franklin County to determine
the responsibility for maintaining the roads. The property owners also sought
specific performance and damages from the developer. The trial court
consolidated the cases and, following a bench trial, held that the county was
not responsible for maintaining the roads. The trial court also directed the
developer to bring the roads up to 1990 subdivision standards. The developer
asserts on this appeal that there had been an implied public dedication of the
roads and, therefore, that the county was responsible for maintaining them. For
their part, two property owners assert that they are entitled to damages in
addition to specific performance. We have determined that the trial court
correctly determined that the roads were not public roads and that the property
owners were not entitled to damages as well as specific performance. However,
we have also determined that the trial court should have ordered the developer
to bring the roads up to the county's current road standards.
Irby C. Simpkins v. Peaches G. Blank -
M2002-02383-COA-R3-CV View
Davidson
County - This case involves an appeal from a grant of summary judgment
equitably dividing a tax refund of the parties and refusing to reopen the
parties' marital dissolution agreement. In addition, appellant contends the
trial court erred by awarding attorney's fees to appellee for issues relating
to child support litigated below. For the following reasons, this Court affirms
the decision of the trial court.
Susan Taylor
v. Square D Company - M2002-01620-COA-R3-CV View
Rutherford
County - Disobeying the direct orders of his supervisor, an
electrician began work on a substation without following the proper safety
procedures. He was electrocuted and perished almost instantly. The widow of the
electrician brought suit against the manufacturer of the substation, alleging
that the manufacturer was negligent and had defectively designed an
unreasonably dangerous product. The trial court granted summary judgment for
the manufacturer. Because there are no material factual disputes, and the
negligence of the electrician was clearly greater than that of the
manufacturer, we affirm the decision of the trial court.
Mary Watkins v. Bryan Watkins -
M2002-01777-COA-R3-CV View
Rutherfoprd
County - This is an appeal from an order denying a Tenn. R. Civ. P.
60.02 motion to set aside a default judgment entered in favor of Wife in her
divorce from Husband. For the following reasons, we vacate the order of the
trial court and remand for further proceedings.
R. Scott Martin v. John Curtis King -
E2002-03055-COA-R3-CV View
Scott County
- This is a breach of contract case. R. Scott Martin ("Plaintiff") sued John
Curtis King ("Defendant"), alleging that Defendant had breached his agreement
to give Plaintiff a 3% interest in Defendant's landfill venture. The trial
court found that the parties' agreement did not pertain to or cover the
particular landfill business out of which Plaintiff sought a 3% interest. The
trial court did conclude that Plaintiff was entitled to a judgment against
Defendant for $4,500 for monetary contributions made by Plaintiff in connection
with the parties' agreement. Plaintiff appeals, contending that the trial court
erred in finding that a novation had occurred, in admitting parol evidence, and
in calculating damages. We affirm.
Cases posted the week of 12/22/2003
In re: K.N.R., et al - M2003-01301-COA-R3-PT
View
(Concur) - View
Robertson County -
Father of two minor children appeals the termination of his parental rights by
the Robertson County Juvenile Court. Father generally alleges that there was
insufficient evidence to terminate his parental rights. In the Final Decree of
Guardianship the trial court set forth the following conclusions of law,
holding (1) that the father abandoned his children; (2) that he was
substantially noncompliant with the permanency plan; and (3) that the
conditions which led to the child's removal still persist, there is little
likelihood that these conditions will be remedied, and the continuation of the
parent and child relationship greatly diminishes the child's chances of early
integration into a safe, stable and permanent home. The final order failed to
set forth findings of fact as required by Tenn. Code Ann. § 36-1-113(k).
As a result, we are unable to review the case. Therefore, we vacate the final
order and remand the matter to the trial court for entry of an order that sets
forth findings of fact and conclusions of law.
Elaine H. Deathridge, et ux vs. Richard T.
Barksdale - M2003-00032-COA-R3-CV View
Davidson
County - Plaintiffs brought action against driver for damages arising
from a rear-end automobile collision. Defendant raised affirmative defense of
sudden emergency caused by a "phantom" non-party defendant's placing duct work
in the roadway. The jury found that Defendant was not at fault. Plaintiffs
appeal. We affirm.
Brandon Bravo,
Leonorilda Gamboa, Epifanio Hernandez vs. Sumner Regional Health Systems, Inc.
vs. Robert Phillip - M2002-02642-COA-R3-CV View
Sumner County -
This is a medical malpractice case. The plaintiff was pregnant and came to the
hospital to have labor induced for delivery of her baby. The defendant
obstetrician-gynecologist had not previously treated the plaintiff, but was the
attending physician for the delivery of her baby. After a lengthy labor, the
defendant physician attempted to deliver the baby vaginally. When problems
developed, the defendant physician immediately delivered the baby by Cesarean
section. The baby suffered injuries from the loss of oxygen during the birthing
process. The plaintiffs, the child's mother and father, individually and on
behalf of the child, sued the defendant physician, asserting that he breached
the standard of care in underestimating the size of the baby and in the
delivery of the baby. The defendant physician moved for summary judgment. In
response, the plaintiffs submitted the expert affidavit of an
obstetrician-gynecologist from Georgia, whose medical practice had been limited
to gynecologic and fertility matters for several years. The defendant physician
objected, arguing under Tennessee Code Annotated § 29-26-115 that the
plaintiffs' proffered expert was not competent to testify regarding obstetrics
since he had not practiced in that specialty for several years and that he did
not satisfy the "locality rule." The trial court found that the expert was not
competent and granted summary judgment in favor of the defendant physician. The
plaintiffs now appeal. We reverse and remand, finding that the affidavit of the
plaintiffs' expert indicated that he was competent to testify about obstetrics
and satisfied the locality rule.
Four
Seasons Heating & Air Conditioning vs. Beers Skanska. -
M2002-02783-COA-R3-CV View
Montgomery
County - This is a breach of contract case. The defendant general
contractor was hired to construct a building on a state college campus. The
contractor hired the plaintiff subcontractor to perform substantial work on the
job. During the course of the project, the subcontractor sought additional
labor costs incurred in the project. This issue was not resolved. Later, the
subcontractor sought from the contractor the retainage kept by the contractor.
When the check was ready, the subcontractor sent its project manager to
retrieve it. In order to get the check, the project manager was required by the
contractor to sign a document releasing all claims between the contractor and
the subcontractor. Later, the subcontractor filed this lawsuit, seeking the
additional labor costs. The contractor filed a motion to dismiss, arguing that,
by the project manager's signature on the release, the subcontractor waived its
claim to the additional labor costs. The subcontractor argued that its project
manager did not have the authority to bind the company to the release. After a
hearing, the trial court dismissed the subcontractor's complaint. The
subcontractor now appeals. We reverse, finding that the evidence was
insufficient to establish as a matter of law that the project manager had
actual or apparent authority to bind the subcontractor or to establish as a
matter of law that the subcontractor ratified the release signed by the project
manager.
Rose Britt vs. Elmer
Britt - W2003-00430-COA-R3-CV View
Madison
County - This appeal arises from a divorce action in which the trial
court granted wife an absolute divorce and open-ended rehabilitative alimony,
ordered the parties marital property sold and the assets divided, and entered a
parenting plan submitted by wife. We affirm in part, modify in part, reverse in
part, and remand.
Cynthia Cooper vs.
James Cooper - W2002-00595-COA-R3-CV View
Weakley
County - Petitioner sought an order from the trial court to require
his former wife to turn over to him property awarded in the divorce action.
Following a hearing, the trial court ruled that the Petitioner had not
sustained his burden of proof and that Petitioner's former wife did not have in
her possession any personal property granted to Petitioner in the divorce
decree. The record is before this Court on Petitioner's appeal and absent a
transcript or statement of the evidence. We affirm.
Larry Dickerson vs. Garry Brown -
W2003-00129-COA-R3-CV View
Crockett
County - This is a legal malpractice case. The defendant attorney
represented the plaintiff in a criminal trial, which resulted in the
plaintiff's conviction in February 2000. In October 2000, the attorney was
granted permission to withdraw from his representation of the plaintiff in the
criminal proceedings. In May 2002, the plaintiff filed the complaint below,
alleging that the attorney committed legal malpractice in his defense of the
criminal charges against the plaintiff. The attorney filed a motion to dismiss
and for summary judgment asserting, among other things, that the complaint was
filed beyond the applicable one-year statute of limitations. The trial court
granted the attorney's motion. The plaintiff now appeals. We affirm, finding
that the undisputed facts show that the plaintiff's legal malpractice claim was
untimely, under Tennessee Code Annotated § 28-3-104(a)(2).
J.M.
Cox, Jr. v. East Tennessee Natural Gas - E2002-02946-COA-R3-CV View
Washington County -
In this declaratory judgment action to declare the rights between the dominant
and servient estates relating to an easement, the trial court held that the
landowner's proposal to add fill dirt over the pipeline easement did not
unreasonably interfere with defendant's rights. Defendant has appealed. We
reverse.
Carl A. Lindblad v. Parkridge Health
System - E2003-00221-COA-R3-CV View
Hamilton County -
The plaintiff resigned his position as Director of the hospital's emergency
services. Parkridge Health System, Inc. d/b/a East Ridge Hospital, [hereafter
"the hospital" or "Defendant"] accepted his resignation and terminated his
staff privileges in accordance with an employment Agreement. The hospital's
bylaws required notice and hearing, which were not followed. The plaintiff
filed this action asserting that in failing to observe its bylaws the hospital
breached its contract with him since the bylaws were an integral part of the
contract. The Chancellor granted the hospital's motion for summary judgment,
holding that the Agreement, which provided for termination of staff privileges
controlled the issue. We affirm.
Alan
Reece Cunningham vs. Sylvia Delain Cunningham - M2002-01659-COA-R3-CV
View
Putnam
County - The case involves the dissolution of a marriage of seven
years. The trial court granted the divorce to the wife, divided the marital
property between the parties in roughly equal proportions, found that the wife
was not economically disadvantaged, and declined to award her any form of
alimony. The wife appeals the court's alimony decision. We find the wife is
entitled to alimony because, contrary to the trial court's finding, we believe
the evidence shows that she is economically disadvantaged when compared to her
former spouse. We modify the judgment to award her alimony in solido.
Thomas G. Hyde vs. Ishikawa Gasket America -
M2002-02653-COA-R3-CV View
Rutherford
County - This case involves the breach of a contract when defendant
refused to pay fees to which plaintiff claims an entitlement. The trial court
below found that, under the facts of the case, the contract did not apply and,
therefore, refused to award plaintiff its fees. Instead, the trial court
awarded plaintiff a lesser amount under the theory of quantum meruit. Plaintiff
timely appealed that decision and, for the reasons stated below, this Court
reverses the ruling of the lower court.
Thomas Newsome vs. Quenton White -
M2001-03014-COA-R3-CV View
Davidson County -
This appeal involves a prisoner who was disciplined for assaulting a prison
employee. After the Department extended his release eligibility date by thirty
percent under Tenn. Dep't Corr. Policy Index No. 502.02, the prisoner requested
a declaratory order that the policy did not apply to him because the Department
had failed to give him fair warning of the policy as required by Tenn. Code
Ann. § 41-21-218 (2003). The Department denied the request, and the
prisoner filed a Tenn. Code Ann. § 4-5-225 (1998) petition for declaratory
judgment in the Chancery Court for Davidson County against the Commissioner of
Correction. The trial court, treating the petition as a petition for common-law
writ of certiorari, granted the Commissioner's motion to dismiss after
determining that it lacked subject matter jurisdiction over the prisoner's
claim and that the prisoner had failed to state a claim because the punishment
he received was not serious enough to infringe upon a protected liberty
interest. The prisoner has appealed. We affirm the dismissal of the prisoner's
petition because he has misconstrued Tenn. Code Ann. § 41-21-218.
Alice Hale vs. Wayne Culpepper -
M2002-01955-COA-R3-CV View
Coffee County -
Following the death of a child's mother, the maternal grandmother filed a
petition to establish grandparent visitation with her grandson. After a hearing
where the trial court heard testimony and after an independent psychological
report, the trial court awarded visitation to the grandmother. The father
appeals, arguing that the evidence preponderates against the trial court's
decision. Because the record contains no evidence of danger of substantial harm
to the child, we reverse the decision of the trial court.
Erik Maasikas vs. Metropolitan Government of
Nashville and Davidson County - M2002-02652-COA-R3-CV View
Davidson
County - Appellant, a former Metropolitan Nashville police officer,
appeals an adverse judgment of the Chancery Court of Davidson County wherein
that court affirmed the decision of the Metropolitan Civil Service Commission
imposing a two-day suspension for a disciplinary infraction. We affirm the
trial court.
Clement Bernard vs. Sumner
Regional Health System - M2002-02962-COA-R3-CV View
Sumner
County - This case was dismissed by the trial court on summary
judgment for res judicata. Plaintiff had previously filed an action against the
same defendant for actions of defendant surrounding a sexual harassment
allegation. The previous action was for procurement of breach of contract and
defamation. A final judgment has been rendered in that case. The current action
is for failure to follow internal procedures resulting in breach of contract.
The issue to be decided on appeal is whether these two cases involve the same
"cause of action" necessary for a finding of res judicata. We find that they do
involve the same "cause of action" and affirm the trial court's
decision.
Thomas K. Bowers vs.
Gutterguard of Tennessee - M2002-02877-COA-R3-CV View
Davidson
County - The defendant challenges the Circuit Court's dismissal of an
appeal from General Sessions Court for failure to comply with Davidson County
Local Rule of Practice 20(b). The Local Rule required the appealing party to
set the matter for trial no more than 45 days following the Circuit Court
Clerk's receipt of the appeal. Though the defendant had filed a motion to set,
an order setting the matter for trial had not been entered when the Circuit
Judge dismissed the appeal and made the judgment of the General Sessions Court
the final judgment. The defendant/appellant sought Rule 60.02(1) relief,
claiming excusable neglect, which was denied. Based upon recent authority,
determination of "excusable neglect" for Rule 60 purposes now requires an
evaluation of three factors: whether the defaulting party's conduct was
willful, whether there exists a meritorious defense, and whether the
non-defaulting party has been prejudiced. We find the defendant's negligence
was not willful and that the plaintiff suffered no prejudice; however, the
record is silent concerning whether the defendant has a meritorious defense.
Therefore, we reverse the trial court and remand the matter to the Circuit
Court for further proceedings consistent with this ruling.
Kathy Clark vs. Randall McClung -
M2003-00552-COA-R3-CV View
Davidson County -
Due to plaintiffs' failure to file an alias summons within one year of the date
the original complaint and summons were filed, the Circuit Court granted
defendant's Motion to Dismiss for plaintiffs' failure to Comply with Rule 3,
Tenn. R. Civ. P. Plaintiffs appealed asserting the error was due to the Circuit
Court Clerk's refusal to file the alias summons and that the trial court abused
its discretion in dismissing the case. We affirm the judgment of the trial
court.
Paul A. Miller vs. Connie Marie
Miller - M2002-02775-COA-R3-CV View
Wilson County -
This is a post-divorce custody proceeding involving two young girls wherein the
trial court denied the Father's Petition for a Change of Custody. We affirm the
action of the trial court.
Mary Ann Gurganus
Eure v. Barry Lynn Eure - E2003-00745-COA-R3-CV View
Bradley County - This is
a post-divorce modification case involving the custody of, and support for, the
parties' minor child, Matthew Chandler Eure (DOB: July 22, 1996) ("the child").
Mary Ann Gurganus Eure ("Mother") filed a complaint seeking custody of the
child. Barry Lynn Eure ("Father"), the child's custodian, answered and filed a
counterclaim seeking an increase in Mother's weekly child support obligation.
Following a hearing, the trial court denied Mother's complaint. The court
subsequently increased Mother's support obligation to $113 per week. Mother
appeals, arguing, in so many words, that the evidence preponderates against
both of the trial court's rulings. We affirm.
Cases posted the week of
12/15/2003
James Boyd vs. Billy Riley -
M2002-01384-COA-R3-CV View
Wayne County -
This appeal, filed pro se, involves two separate law suits that were filed and
pursued in the trial court without consolidation and heard without
consolidation on appeal. One complaint alleges negligence, and the other
complaint alleges malpractice. The trial court dismissed both actions, and we
affirm the actions of the trial court.
Lewis
Langley vs. Sarah Langley - M2002-02278-COA-R3-CV
View
Davidson
County - Husband's proposed division of marital assets was adopted by
the trial court. Wife received more than one-half of the assets, amounting to
one and one-quarter million dollars, mostly liquid. Husband was nevertheless
ordered to pay substantial alimony, both in solido and in futuro, together with
attorney fees and certain expenses, including the maintenance of a
three-quarter million dollar policy of life insurance with Wife as beneficiary.
The alimony in solido award is affirmed, and the remaining awards are vacated.
Govindaswamy Nagarajan vs. Sandra Scheick
- M2000-02323-COA-R3-CV View
Davidson County
- This appeal is an outgrowth of complaints filed by a group of Tennessee State
University students regarding the performance of their physics professor. After
the students complained to the university, the professor filed a pro se
complaint in the Chancery Court for Davidson County against the Tennessee Board
of Regents, the university, four university administrators, and twenty-four
students, alleging breach of contract, defamation, intentional infliction of
emotional distress, and discrimination based on age, race, and national origin.
The trial court dismissed the professor's complaint in its entirety in response
to motions to dismiss filed by the university defendants and a number of the
student defendants. The professor then filed serial "motion[s] to vacate the
order of dismissal for just cause." The trial court denied the first motion
and, treating the second motion as a Tenn. R. Civ. P. 60.02(2) motion, also
denied the second. On this appeal, the professor seeks to raise twelve issues
regarding the merits of his claim. However, the only matter properly before us
is the denial of his second "motion to vacate the order of dismissal for just
cause." We have determined that the trial court properly denied this motion. We
have also determined that this appeal is frivolous.
Town of Nolensville vs. Ronald M. King -
M2001-02572-COA-RM-CV View
Williamson
County - This appeal arises from the enforcement of the Town of
Nolensville's ordinance outlawing the storage of abandoned or unusable
automobiles and storage trailers within its city limits. After the Nolensville
City Court entered a judgment against him for $18,600 for repeated, flagrant
violations of the ordinance, a town resident petitioned the Circuit Court for
Williamson County for a common-law writ of certiorari seeking to set aside the
city court's judgment because he had been deprived of his right to a jury
trial. The trial court granted the writ and set aside the city court's judgment
based on its conclusion that Tenn. Const. art. VI, § 14 guarantees the
right to a jury trial for fines in excess of fifty dollars. After this court
vacated the trial court's order, the resident filed a Tenn. R. App. P. 11
application with the Tennessee Supreme Court. The Court granted the application
and remanded the case to this court with directions to reconsider the case in
light of City of Chattanooga v. Davis, 54 S.W.3d 248 (Tenn. 2001). We have
determined that the resident was not deprived of his right to have a jury
assess his fine because Tenn. Code Ann. § 27-5-101 (2000) affords him an
absolute right to a de novo trial in circuit court where he may obtain a jury
trial if he wants one.
Ronald Paul v. State
- M2003-01244-COA-R9-CV View
Appellant, a state prison inmate,
filed a claim with the Tennessee Claims Commission against the State of
Tennessee for the alleged malpractice of Dr. Paul Somers, a physician acting
under contract with the Department of Corrections, to provide medical care for
inmates. The Commission granted summary judgment on the basis that Dr. Somers
was not a "state employee" within the meaning of Tennessee Code Annotated
section 8-42-101(a)(3). We affirm the action of the Commission.
Children's Services v. Shanna Hall -
M2003-01328-COA-R9-JV View
Dickson County
- Appellants challenge the refusal of the trial judge to recuse himself in a
contempt proceeding. The case is before this Court on a Tennessee Rule of
Appellate Procedure rule 9 application, and upon consideration, we find no
basis for the contempt citation and remand the case to the trial court with
instructions to dismiss the contempt citation.
J. L. Beechum, Jr. v. Charles Traughber -
M2003-00150-COA-R3-CV View
Davidson County
- Petitioner, an inmate with the Department of Corrections, sought judicial
review of decisions of the Tennessee Board of Probations and Parole first to
revoke his parole and then to decline to release him on parole. The Chancery
Court for Davidson County denied the inmate's request for relief, and the
inmate has appealed. We have determined that the inmate's challenge to the
revocation of his parole was untimely and that the inmate's complaint regarding
the late certification of the records regarding his Georgia conviction is
without merit. Accordingly, we affirm the dismissal of the inmate's petition.
Jennifer Biscan v. Franklin Brown -
M2001-02766-COA-R3-CV View
Davidson
County - After attending a party where alcohol was present, a minor
intoxicated driver and minor guest passenger were involved in an automobile
accident in which the passenger suffered serious injury. The passenger sued the
driver and the adult host of the party. The jury awarded the minor guest
passenger damages and allocated fault 70% to the minor intoxicated driver, 15%
to the adult party host, and 15% to the minor guest passenger. The driver and
the host appeal various rulings of the trial court. We affirm.
Cecil Jacobs v. Edwin Underhill -
M2002-02866-COA-R3-CV View
Perry County -
The appellants challenge the trial court's Order commanding them to remove a
portion of their patio and garage and any portion of their residence
constructed since 1999 which encroaches on the appellees' property. We affirm.
Morristown Surgery v. Tennessee Health
Facilities Commission - M2002-02872-COA-R3-CV
View
Davidson
County - This appeal under the Administrative Procedures Act
challenges a chancery court order affirming the dismissal of the Appellant's
Petition for Contested Case Review. We affirm.
In
the Matter of: D.L.(P.)C.,et al - M2003-00088-COA-R3-CV
View
Davidson County
- Mother appeals the trial court's award of custody of her four minor children
to the Tennessee Department of Children's Services based on a finding of
dependency and neglect. We affirm.
Shayle
Hirschman vs. Suanne Hirschman - W2003-00008-COA-R3-CV
View
Shelby
County - This divorce case involves issues concerning division of
marital property and particularly the concepts of commingling and transmutation
as applied to wife's separate property. The trial court found there had been no
commingling or transmutation of wife's separate property and made a division of
the marital property accordingly. Husband appeals. We affirm.
Dept. Children Serv. vs. Ericka Everson -
W2002-01085-COA-R3-JV View
Dyer County -
This case involves the termination of parental rights. The two children lived
with their single mother in Arkansas. The mother and children stayed
temporarily with the children's grandfather in Arkansas, who sexually abused
one of the children. After the grandfather threatened the mother, she and the
children went to Tennessee and stayed with the children's grandmother. The
mother went back to Arkansas and left the children with the grandmother in
Tennessee. The grandmother repeatedly sought medical attention for one of the
children. A physician determined that the child was a victim of Manchausen
Syndrome by Proxy, a form of child abuse in which the caretaker exaggerates or
secretly induces symptoms of illness in the victim and then seeks medical
attention for the victim's "illness." Both children were taken into custody by
the Tennessee Department of Children's Services. A permanency plan was designed
for the children's mother. The mother failed to comply with the permanency
plan, provide support for the children, or visit the children on a regular
basis. In addition, she abducted the children from foster care and would not
protect them from the abusive grandmother. The State filed a petition to
terminate the mother's parental rights. The trial court granted the petition,
and the mother appeals. We affirm, finding that termination of the mother's
parental rights was warranted on several grounds and that termination was in
the children's best interest.
Charles
Honeycutt vs. Ann Honeycutt - W2003-00233-COA-R3-CV
View
Shelby
County - This appeal involves the interpretation of an MDA
incorporated into a Final Decree of Divorce concerning a provision for
termination of alimony upon wife's cohabitation with an unrelated male. The
trial court denied Husband's petition for termination and Husband appeals. We
reverse and remand.
Linda Campbell v. Opal
Carroll - M2003-00295-COA-R3-CV View
Robertson County
- This appeal involves the denial by the trial court of a motion for Rule 11
sanctions. The request for sanctions was made pro se by defendant Michele Scott
against plaintiff and her counsel for failing to perform an adequate prefiling
investigation as required under Rule 11. We affirm the judgment of the trial
court.
Kevin Demers v. Karen Demers -
M2002-01970-COA-R3-CV View
Robertson
County - This involves a post-divorce petition to reduce child
support. The mother and father were divorced in 1998, and the mother was
awarded custody of the parties' three children. The father was ordered to pay
child support plus private school tuition, based on substantial annual earnings
from self-employment. In December 2000, the father filed a petition to have his
child support payments reduced based on a decline in his business. The father
later liquidated the assets of his business and quit work. He subsequently
amended his petition, asserting that he had earned no income since the
liquidation of his business. After a bench trial, the trial court rejected the
father's petition for a reduction in child support, finding that the father was
willfully underemployed. The father now appeals. We affirm, finding that the
evidence does not preponderate against the trial court's determination that the
father was willfully underemployed.
Lorraine
Miller v. Bruce Miller - M2002-02731-COA-R3-CV
View
williamson
County - The trial court awarded a divorce to a sixty-four year old
woman with multiple health problems, and ordered her former husband to pay her
$700 per month as alimony in futuro. The husband argues on appeal that the
trial court erred, because the wife was capable of working, and was therefore
only entitled to rehabilitative alimony. We affirm the trial court.
Kennedy Woods v. Nashville and Davidson County -
M2001-03143-COA-R3-CV View
Davidson County
- This case involves an Administrative Procedures Act appeal from the chancery
court's determination of Appellant's Petition for Judicial Review. The petition
sought review of the Civil Service Commission's final order affirming
Appellant's termination for violation of the Metro Nashville Fire Department's
Zero-Tolerance Policy on Substance Abuse. We affirm the order of the trial
court.
Cases posted the week of 12/08/2003
Clemmye Berger v. Brenda O'Brien -
W2002-00227-COA-R3-CV (Filed December 8, 2003) View
Shelby County
- This appeal involves the trial court' s denial of additional fees and
expenses sought by guardian ad litem and attorney ad litem incurred in
defending the previous appeal by an appellant contesting a judgment against him
for a portion of the guardian ad litem and attorney ad litem fees incurred in
the course of the trial court proceedings. In the previous appeal, this Court
denied the application of the attorney ad litem and guardian ad litem for
damages for frivolous appeal. The trial court denied the motion seeking
additional fees and expenses and the guardian ad litem and attorney ad litem
have appealed. We affirm.
Dept. of Children's
Services vs. K.G., et al In re: K.L.H. - E2003-00437-COA-R3-PT View
Hamilton County - The
State of Tennessee, Department of Children's Services ("DCS") filed a petition
seeking to terminate the parental rights of K.G. ("Mother"), and F.L.H., Jr.
("Father"), the biological parents of the minor child, K.L.H. ("the Child").
The trial court granted DCS' petition to terminate first Father's, and later
Mother's, parental rights. Mother appeals. We vacate the order terminating
Mother's parental rights and remand for a new termination decision.
Juanita W. Keylon vs. Robert A. Hill -
E2003-01054-COA-R3-CV View
Roane County -
The plaintiff's motion for partial summary judgment, based upon the asserted
failure of the defendant to countervail the motion, was denied by the trial
judge. The plaintiff argues that the established rule that the denial of a
motion for summary judgment, followed by a jury trial and verdict, is not
reviewable, has no application in this case because there was no verdict. The
rule is that the denial of a motion for summary judgment is not reviewable when
the case proceeds to judgment, as distinguished from verdict. The motion of the
defendant in this medical malpractice case for a directed verdict made at the
close of all the evidence was granted upon a determination that all of the
expert testimony established that the three-hour window to administer a blood
clot dissolver had expired before the defendant treated the plaintiff. Whether
the particular anticoagulant should have been administered in a timely manner
was at the core of the claimed negligence. We find the question of negligence
to be within the peculiar province of the jury, and remand the case for a new
trial.
Walter E. Grantham, IIl vs. Robert
Larry McGill - E2003-02005-COA-R3-CV View
Hamilton
County - Mary Frances McGill sued Robert Larry McGill ("Defendant")
seeking return of personal property and claiming fraudulent execution of a deed
to real property. Ms. McGill died and Walter E. Grantham, II, Administrator
C.T.A. of the Estate of Mary Frances McGill ("Plaintiff") was substituted as
plaintiff in this case. The case was tried and the Trial Court entered a final
decree dismissing the complaint. Plaintiff appeals. The record contains neither
a transcript nor a statement of the evidence. We affirm.
Louis Laurent vs. Suntrust Bank -
E2003-01408-COA-R3-CV View
Knox
County - Louis A. Laurent and Barbara Laurent ("Plaintiffs") sued
SunTrust Bank ("Defendant") for alleged defamatory statements made by
Defendant's attorney in a separate lawsuit. Defendant filed a motion to dismiss
for failure to state a claim upon which relief can be granted. The Trial Court
granted the motion to dismiss. Plaintiffs appeal. We affirm.
Judy Carolyn Lawson vs. Cynthia Gale Rines -
E2002-02152-COA-R3-CV View
Knox County -
This is a wrongful death action. The Trial Court excluded proof of the
deceased's Social Security benefits at trial. Judy Carolyn Lawson ("Plaintiff")
made an offer of proof showing only the amount of monthly Social Security
benefits received. The jury returned a verdict in Plaintiff's favor, and the
Trial Court granted Plaintiff's motion for prejudgment interest. Service Radio
Cab Co., Inc. ("Defendant") appeals the award of prejudgment interest.
Plaintiff appeals regarding the exclusion of proof of Social Security benefits.
We affirm, in part, and reverse, in part.
Russell Siegfried vs. The Grand Krewe of Sphinx -
W2002-02246-COA-R3-CV View
Shelby County
- This case involves an appeal from the trial court's grant of defendants'
motion for summary judgment. The trial court dismissed the plaintiff's
complaint for failing to meet the publication element required for a prima
facie claim of defamation/libel. We affirm.
Larry Manus vs. William Sudbury -
W2003-00447-COA-R3-CV View
Obion County -
The Plaintiff broke a tooth while an inmate in the Obion County Jail. He sued
the Defendants alleging that he was deprived of medical care. The trial court
granted the Defendants' motion for summary judgment and Plaintiff appeals. We
affirm.
Charles Knight vs. Ramona Knight
- W2003-00001-COA-R3-CV View
Hardin County
- This is a child custody case. The mother alleged abuse by the father and the
father alleged that mother had psychological problems, failed to prepare
nourishing meals, and had difficulty establishing her authority as a parent.
The trial court designated the father as the primary residential parent for the
parties' minor son. We affirm, finding no abuse of discretion by the trial
court.
Cases posted the week of 12/01/2003
American Excavators v. RCR Building Corp. -
M2002-01757-COA-R3-CV View
Williamson
County - American Excavators, LLC ("Plaintiff") entered into a
subcontract agreement with RCR Building Corporation ("Defendant") which
required Plaintiff to perform excavation and utilities work for the Williamson
County community services building. The subcontract agreement provided for
certain excavation work to be done for a lump sum and states that "[a]ny
additional undercutting and refilling of areas due to unsuitable soils will be
done for a unit price of $12.50 per cubic yard." Plaintiff claims that while
performing the work, it encountered a large amount of unsuitable soil that it
removed and replaced. Plaintiff later submitted change orders to Defendant
requesting to be paid for the removal of the alleged unsuitable soil. Defendant
paid a portion of the change orders, but refused to pay the entire amount.
Plaintiff sued for breach of contract. After a bench trial, the Trial Court
dismissed Plaintiff's claims against Defendant. Plaintiff appeals. We affirm.
William Reinhart v. Robert Knight -
M2001-02195-COA-R3-CV View
(Dissent) - View
Rutherford
County - This appeal involves claims of breach of contract for sale of
real estate and procurement of breach of contract. After a jury trial, the
defendants Robert and Glenda Knight were found to have breached the real estate
sales contract with the plaintiffs and plaintiffs were awarded $185,476.48. The
jury also found that the defendants Bob Parks and John Harney procured the
breach of contract by the Knight defendants and awarded plaintiffs $556,429.44.
The trial judge remitted the damage award against the Knights to $0.00. For the
reasons set forth below, we reverse the remittitur suggested by the trial court
and reinstate the jury verdict of $185,476.48 against the Knights. We affirm
the judgment in all other respects and remand this matter for such further
proceedings as may be consistent with this opinion.
Ricky Lee Jenkins v. Heather Johnson -
M2001-02103-COA-R3-CV View
White County
- This appeal arises from the lower court's modification of a child custody
arrangement. The trial court found that a material change in circumstances had
occurred and awarded primary residential custody to Father. For the following
reasons, we affirm the judgment of the lower court.
In Re: Bridgestone/Firestone & Ford Motor Tire
Litigation - M2002-02204-COA-R10-CV View
Davidson
County - This extraordinary appeal arises from the lower court's
denial of Appellants' motion to dismiss under the doctrine forum non
conveniens. The case is comprised of thirty-one lawsuits, based on automobile
accidents in Mexico involving Ford and Firestone products, that are
consolidated in Davidson County, Tennessee for pretrial purposes. Using the
approach set forth by the Tennessee Supreme Court in Zurick v. Inman, the trial
court found that dismissal of the case was not necessary. For the following
reasons, we reverse the ruling of the lower court.
Dept. of Children's Services v. T.L.C. -
M2003-00509-COA-R3-JV View
Coffee County - In
this appeal the Appellant, R.L.P, Sr., argues that the Trial Court erred in
terminating his parental rights to his son, R.L.P., Jr. We vacate the judgment
of the Trial Court and remand.
James Corbin
v. Tom Lange Co. - M2002-01162-COA-R3-CV View
Davidson County -
This case involves a noncompetition agreement. An employee signed a noncompete
agreement when he began working for an employer. The employee resigned and
began working for a competitor of the employer. The employee sought a
declaratory judgment that the noncompete agreement was unenforceable.
Approximately eighteen months into the two-year noncompetition period, the
trial court issued a ruling that the agreement was not enforceable. The
employer appeals. We affirm, finding that neither the training provided to the
employee nor the employee's relationship with the employer's customers created
a business interest that warranted the protection of a noncompetition
agreement.
C & G Seeds v. Sammy
Taylor - M2002-01572-COA-R3-CV View
A farming supply store brought
suit against an account holder for money due on an unpaid account. The trial
court found that the store failed to prove any monies were owed. The farming
store appeals, arguing that the evidence preponderates against the trial
court's decision. We affirm the decision of the trial court.
Cases posted the week of 11/24/2003
Combustion Federal Credit Union vs.
John Farmer - E2003-00107-COA-R3-CV View
Hamilton
County - A judgment was rendered against Mr. Farmer in 1992. It
remained unpaid, and the judgment creditor's petition for revival was granted.
Mr. Farmer appeals, claiming that he never signed the note which formed the
basis of the 1992 action. We affirm.
Ronnie Johnson vs. Mark R. White -
E2002-02815-COA-R3-CV View
Knox
County - These three cases were consolidated for trial. Each
Respondent agreed to an Order of Protection sought by their kinsman, who was
married to the daughter of Mark V. White, the sister of Mark R. White and niece
of Michael Scott Webb. The throes of the divorce action between the Petitioner
and his wife, Jennifer White Johnson, precipitated a purported assault on the
Petitioner by the Respondents which resulted in criminal charges in addition to
an order of protection. Thereafter, the Petitioner and his wife attended the
Fourth Circuit Court for a hearing, and the Respondents upon instructions of
their attorney in the criminal case also attended, and followed the Petitioner
"about the courthouse" placing him in fear. They were cited for criminal
contempt, found guilty, and sentenced to ten days confinement, with five days
suspended. Each appeals, complaining that the evidence of criminal contempt is
insufficient. We affirm.
Admiralty Suites & Inns vs. Shelby
Co. - W2002-02155-COA-R3-CV View
Shelby
County - This case involves the constitutionality of Tenn. Code Ann.
§ 67-4-1425, which governs occupancy taxes on hotels and motels. After
conducting a hearing on the matter, the lower court found the statute
constitutional. For the following reasons, we affirm in part and reverse in
part the finding of the trial court.
J.W.G. v.
T.L.H.G. - M2002-02656-COA-R3-JV View
Montgomery County
- This is a child custody case. At an earlier time – on October 15, 1996
– J.W.G. ("Father") petitioned the juvenile court for custody of his
daughter, H.N.G. (DOB: 8/24/96) ("the child"). The juvenile court granted
Father custody of the child. Later – on October 12, 1997 – Father
married the child's mother, T.L.H.G. ("Mother"). The parties were divorced in
May, 2001. The chancery court, in granting the divorce, gave the parties joint
custody of the child, naming Mother as the primary residential custodian. Later
that year, the chancery court, acting on Father's petition, reversed its order
of custody, holding that it did not have jurisdiction to determine custody.
Subsequently, the juvenile court, following a hearing, again awarded custody to
Father. Mother appeals, arguing that, contrary to the chancery court's ruling,
the juvenile court did not have exclusive jurisdiction to determine custody;
that the trial court's findings are not supported by the evidence; and that a
parenting plan was never submitted to the trial court. By way of a separate
issue, Father argues that Mother's notice of appeal is deficient. We affirm.
American Corrections Transport v. Ruth E.
Johnson - M2002-01509-COA-R3-CV View
Davidson
County - This is a claim for a refund of Tennessee franchise and
excise taxes. From 1987 through 1998, the taxpayer corporation was the sole
owner of stock in a subsidiary corporation. In the taxpayer's 1996 Tennessee
franchise and excise tax return, the taxpayer claimed a deduction based on its
assertion that the stock in the subsidiary became worthless or was abandoned in
1996, and that its basis in that stock for state tax purposes was greater than
its basis for federal tax purposes. The defendant Tennessee Commissioner of
Revenue disallowed the deduction and sent the taxpayer a notice of assessment.
The taxpayer paid the assessment, then filed the instant lawsuit for a refund.
After a bench trial, the trial court rejected the taxpayer's claim and denied
the refund. The taxpayer appeals. We affirm, finding that the taxpayer
submitted insufficient evidence that there was an "other disposition" of its
stock in 1996 to entitle it to deduction under T.C.A. § 67-4-805(b)(2)(D).
In the alternative, we affirm the trial court's conclusion that the taxpayer
did not submit sufficient evidence of the difference in its basis for state tax
purposes and its basis for federal tax purposes so as to justify the claimed
deduction under T.C.A. § 67-4-805(b)(2)(D).
Shawn Vineyard vs. Bill Varner D/B/A Fountain City
Auto - E2003-00436-COA-R3-CV View
Knox County
- Shawn T. Vineyard ("the plaintiff") purchased a 1991 Nissan automobile from
Bill Varner, doing business as Fountain City Auto Sales ("the defendant").
Later, the plaintiff sued the defendant alleging a fraudulent misrepresentation
and a violation of the Tennessee Consumer Protection Act ("the TCPA") in
connection with the sale. In addition to other relief, the plaintiff sought
compensatory damages; in the alternative, he asked for rescission of the sale
agreement. After the trial court denied the defendant's motion for summary
judgment, this matter proceeded to trial before a jury. The jury, in response
to interrogatories, found the defendant guilty of violating the TCPA, but found
no damages. The jury also found that the defendant had committed a fraudulent
misrepresentation in connection with the sale of the automobile and assessed
the plaintiff's damages at $2,100. In response to post-trial motions, the trial
court decreed rescission and awarded the plaintiff the purchase price of
$2,100. Defendant appeals, arguing that the trial court erred (1) in denying
his motion for summary judgment; (2) in decreeing rescission and otherwise
modifying the jury's verdict; and (3) in awarding attorney's fees of $12,000 to
the plaintiff. We affirm.
Department of
Children's services vs. R.A.W. - E2003-00847-COA-R3-PT
View
Greene County -
R.A.W. ("Father") challenges the termination of his parental rights, claiming
there was insufficient proof to establish grounds for termination or that it
was in the best interest of the child to terminate the parent-child
relationship. Father also claims the Juvenile Court erred when it refused to
grant him visitation after the petition to terminate his parental rights had
been filed. We affirm the decision of the Juvenile Court.
Ronald Loines vs. Kimberly Loines -
E2003-00526-COA-R3-CV View
Hamilton
County - In this divorce case, the trial court awarded Ronald Keith
Loines, Jr. ("Husband") a divorce from Kimberly Loines ("Wife") by judgment
entered January 14, 2003. Wife filed her notice of appeal on February 25, 2003.
Because the notice of appeal was not filed within 30 days of the entry of the
judgment of divorce, we are without jurisdiction to consider the issues raised
by Wife. Accordingly, Wife's appeal is dismissed.
Monte Bounds vs. Zella Cupp - E2003-00692-COA-R3-CV
View
Knox County
- The appellees filed suit against the appellant, alleging that the appellees,
Lawrence R. Bozeman and wife, Imogene Bozeman ("the appellees Bozeman"), owned
a 12-foot wide easement accross the property of the appellant. The appellant
filed an answer, relying upon "the affirmative defense of abandonment plus
adverse possession by the [appellant]." Following a plenary trial, the court
below found that the appellees Bozeman had an express easement across the
property of the appellant and that they "ha[d] not taken action of clear and
unmistakable character indicating an abandonment of the easement." The
appellant contends on this appeal that the trial court erred in failing to find
abandonment of the easement. Since there is no transcript or statement of the
evidence in the record before us, we affirm the judgment of the trial court.
Frankie Maples vs. Frank Maples -
E2003-00722-COA-R3-CV View
Knox County -
Husband, for the second time, seeks a reduction in his alimony obligation,
claiming that his bona fide retirement coincided with a substantial decrease in
income. The trial court modified the obligation by reducing it to $919.50
monthly. Wife receives $752.00 from social security. Her reasonable expenses
were found to be $2176.00. Husband appeals, insisting that the reduction is
insufficient. Wife presents for review the issue of whether any reduction was
justified. We reinstate the initial award, finding that Husband, as in the
prior appeal, continued his pattern of conduct in restructuring his assets to
award his obligation.
Eddie Belcher vs.
State - E2003-00642-COA-R3-CV View
This claim against the State
of Tennessee arises out of a two-vehicle accident. Eddie W. Belcher was driving
to church with his wife, Sara O. Belcher, when their vehicle struck the rear of
a vehicle driven by Eric Wilson . The Belchers, who sustained severe injuries
as a result of this accident, filed a claim against the State, alleging that a
dangerous condition existed on the portion of the interstate where the accident
occurred and that the section of the interstate was negligently designed and
maintained. The Claims Commission determined that the State was negligent in
its design of that stretch of interstate, but held that its negligence was not
the proximate cause of the Belchers' injuries. The Belchers appeal, arguing
that the Claims Commission erred in the second of these two determinations. By
way of a separate issue, the State contends that the Belchers' claim is barred
by the four-year statute of repose. We affirm.
John Reed vs. Carter County - E2002-03131-COA-R3-CV
View
Carter
County - John R. Reed and wife, Margaret Reed, filed suit against
Carter County, alleging they suffered personal injuries and property damage as
a result of an accident that occurred while they were crossing a one-lane
bridge built in 1916 or 1918. The plaintiffs were in a wagon being pulled by a
horse and mule team. It is alleged that the mule slipped off the bridge causing
the wagon to become entangled at the edge of the bridge. The bridge is owned
and maintained by Carter County; it did not have guardrails. The plaintiffs
charge that the "defective, unsafe, or dangerous condition of the bridge"
proximately caused the accident and their resulting injuries and damages. The
county filed a motion for summary judgment, raising the affirmative defense of
governmental immunity pursuant to the Tennessee Governmental Tort Liability Act
("the GTLA"), Tenn. Code Ann. § 29-20-101, et seq. The trial court granted
the motion. The plaintiffs appeal, arguing that the trial court erred in
granting summary judgment. They argue that there is a genuine issue of material
fact as to whether the bridge was "defective, unsafe, or dangerous." In
addition, they contend the trial court improperly weighed the evidence, rather
than viewing it in the light most favorable to the plaintiffs as the nonmoving
parties. We affirm the grant of summary judgment in part and reverse that grant
in part and remand to the trial court for further proceedings.
Brick Church Transmission v. Southern Pilot Ins.
- M2002-0278-COA-R3-CV View
Davidson
County - Insured, Plaintiff/Appellant, filed suit under a policy of
commercial insurance alleging a loss by theft that was covered by the policy.
Defendant/Appellee filed a Tennessee Rule of Civil Procedure 12.02(6) Motion to
Dismiss based upon expiration of the two year period in which suit could be
brought under the terms of the policy. The trial court granted the motion to
dismiss, and we affirm the action of the chancellor.
In Re: Adoption of William Muir - M2002-02963-COA-R3-CV
View
Marion County
- This appeal involves the termination of the parental rights of the biological
father of a five-year-old child. The child's mother and her husband filed a
petition in the Circuit Court for Marion County seeking to terminate the
biological father's parental rights and to approve the husband's adoption of
the child. They proceeded with the petition even after they were divorced.
Following a bench trial in May 2002, the trial court entered an order on
December 2, 2002 denying the petition on the ground that the mother and her
former husband had not established by clear and convincing evidence that the
biological father had abandoned the child. The mother has appealed. We have
determined that the December 2, 2002 order must be vacated because the trial
court failed to make the specific findings of fact required by Tenn. Code Ann.
§ 36-1-113(k) (Supp. 2003).
Dan
Johnson v. Department of Correction - M2001-02424-COA-R3-CV
View
davidson
County - This appeal involves a dispute between a prisoner and the
Tennessee Department of Correction regarding historical sentencing information
contained in his records. The prisoner filed a petition for writ of mandamus in
the Chancery Court for Davidson County seeking an order directing the
Department to remove an outmoded release eligibility date from his records and
to certify him as eligible for parole. The trial court granted the Department's
motion for summary judgment, and the prisoner has appealed. We affirm the
judgment because the manner in which the Department maintains its records is
not a ministerial function and because the prisoner does not have a legal right
to require the Department to maintain his records in any particular way.
Kelley McEvoy v. Kimberly Brewer -
M2001-02054-COA-R3-CV View
Sumner County
- This appeal involves the custody of a seven-year-old girl. Her parents
initially agreed to joint custody in their marital dissolution agreement that
was approved by the General Sessions Court for Sumner County. Both parties
later petitioned for sole custody. The general sessions court determined that
the father should be the child's primary custodial parent because the mother
had married a man who posed a credible threat of domestic abuse or violence
toward the child and because the existing alternating custody arrangement was
no longer workable. The mother asserts on this appeal that the evidence does
not support the general sessions court's decision to change custody. We have
determined that the evidence does not preponderate against the court's decision
to modify the custody arrangement and to award the father primary physical
custody of the child.
Santos Parra-Soto v.
Colis Newble, Jr. - M2003-00090-COA-R3-CV View
Davidson County
- A prisoner in the custody of the Department of Correction filed a Petition
for Writ of Certiorari to review a decision by the Board of Probation and
Parole declining to release him on parole. Although the trial court notified
him that under Tenn. Code Ann. § 41-21-807 he had to make at least a
partial payment of the filing fee before his case could be considered, the
prisoner failed to do so. The court accordingly dismissed his Petition. We
affirm.
Children's Services, vs. SJMW, In The
Matter of: DJL - E2003-00519-COA-R3-PT View
Hamilton County -
The mother's parental rights were terminated by the Trial Judge. Mother has
appealed. We affirm.
Queen's Tree Surgery v.
Metro Government of Nashville - M2003-00228-COA-R3-CV
View
Davidson
County - Appellant defendant in this action for damages was non-suited
and then added as defendant pursuant to TCA § 20-1-119. This defendant
appealed from adverse judgment. We affirm.
Dudley Stovall v. William Thomas Bagsby -
M2002-01901-COA-R3-CV View
Williamson
County - This twice-tried boundary line litigation, spanning five
years, involves a small square-footage of a long-existing private roadway, five
surveyors-engineers, and a host of lay witnesses. The Chancellor adopted the
expert opinion of one of the surveyors with respect to the precise location of
a crucial corner of the roadway. We affirm except as modified with respect to
discretionary costs, which requires a remand for determination.
Edward
Hochhauser III vs. Annelle Hochhauser - W2003-00119-COA-R3-CV
View
Shelby
County - This is an appeal from a final decree of divorce, involving
issues of concurrent awards of alimony in futuro and rehabilitative alimony,
and an award of attorney fees. Husband appeals. We reverse in part, modify and
affirm in part.
Marie Jennings vs. Sewell
Allen, Inc, d/b/a/ Megamarket - W2002-01663-COA-R3-CV
View
Shelby
County - This appeal arises from a personal injury action. The
defendant filed a motion for summary judgment, which motion was granted by the
trial court. This appeal ensued. For the following reasons, we affirm.
Estelle Frame vs. Kenneth Frame Jr. -
W2002-00490-COA-R3-CV View
Shelby County -
This is a father's appeal of an order which, inter alia, increased a child
support obligation based upon the finding of willful and voluntary
unemployment. On mother's motion, the appeal is dismissed for failure to timely
file a notice of appeal pursuant to Tenn. R. App. P. 4.
Frank Mills vs. Luis Wong - W2002-02353-COA-R3-CV
View
Shelby
County - This case involves an appeal from the trial court's grant of
defendants' motion for summary judgment. The trial court dismissed the
plaintiff's complaint for failure to bring their medical malpractice claim
within the applicable three-year statute of repose. We affirm.
Cases posted the week of 11/17/2003
City of Knoxville vs. Entertainment
Resources - E2002-01143-COA-R3-CV View
Knox County -
This appeal questions the constitutionality of Knoxville Code § 16-468 and
asserts that the Trial Court erred in its grant of a temporary injunction
against the Appellant, Entertainment Resources, LLC. We declare the ordinance
unconstitutional, reverse the judgment of the Trial Court and remand.
Melinda Anderson vs. Brett Wilder -
E2003-00460-COA-R3-CV View
Knox County -
This case involves a dispute between members of a limited liability company
("LLC") entitled FuturePoint Administrative Services, LLC. The Plaintiffs were
expelled from the LLC by a vote of the Defendants, who together owned 53% of
FuturePoint. The Plaintiffs received a buyout price of $150.00 per ownership
unit in FuturePoint after they were expelled, pursuant to the operating
agreement of the LLC. Shortly after the expulsion, the Defendants sold 499
ownership units, amounting to a 49.9% interest in the LLC, to a third party at
a price of $250.00 per ownership unit. Plaintiffs filed this action, alleging,
among other things, that the Defendants' actions violated their fiduciary duty
and duty of good faith to Plaintiffs. Defendants moved for summary judgment,
arguing that their actions were authorized by the operating agreement and that
they acted in good faith in expelling the Plaintiffs. The Trial Court granted
summary judgment in Defendants' favor. We vacate the order of summary judgment
and remand.
Carl Evans vs. Clarence
Douglas - E2002-02191-COA-R3-CV View
Hamilton
County - This is a suit by Carl Evans and his wife Sharon Evans
against Clarence Douglas, Heritage Realty, Care Free Home Center, Inc., and
Rick McManus. The suit sought damages because a lot they supposed they were
buying from Mr. Douglas was not the lot they owned, but one adjacent thereto.
Heritage Realty was sued as the employer of Mr. Douglas and Care Free Home
Center, Inc., as the seller of a modular home which was placed on the wrong
lot, and putting the Evanses in touch with Mr. Douglas. Rick McManus was the
owner of the lot upon which the modular home was placed, although no relief was
sought against him. Mr. McManus, however, did file a counter-complaint seeking
rents from the Evanses for their use of his lot. The Trial Court awarded a
judgment to the Evanses against Mr. Douglas only, under the Tennessee Consumer
Protection Act, and a judgment in favor of Mr. McManus against the Evanses for
rental value of the property, as well as discretionary costs. We affirm as
modified.
Antuan J. Foxx v. James Neely, et
al - M2003-01634-COA-R3-CV View
Davidson County -
This is an appeal by a former employee whose unemployment compensation benefits
were denied on the basis of work-related misconduct, specifically for allegedly
refusing to perform certain work as requested by a supervisor. The claim for
benefits was denied by the Employment Security Division of the Tennessee
Department of Labor and Workforce Development. The employee filed a petition
with the Chancery Court for judicial review. The Chancery Court affirmed. The
employee asserts that the denial of his claim is not supported by substantial
and material evidence. We find there is substantial and material evidence to
support the denial of benefits and affirm the trial court.
Myra Pate vs. State - E2003-00297-COA-R3-CV
View
Myra Pate ("Plaintiff") filed
a claim with the Tennessee Division of Claims Administration after she slipped
and fell on her way to class at Pellissippi State Technical Community College
("PSTCC"). When her claim was denied, Plaintiff filed a complaint in the
Tennessee Claims Commission ("Commission") against the State of Tennessee ("the
State"). The State filed a motion for summary judgment claiming Plaintiff had
filed for Chapter 13 bankruptcy and failed to disclose the existence of her
claim against the State. The State argued Plaintiff was judicially estopped
from pursuing this lawsuit and also that she lacked standing. When Plaintiff
failed to file a timely response to the motion for summary judgment, the
Commission granted the motion solely because no response had been filed.
Plaintiff appeals. We vacate the grant of summary judgment and remand for
further proceedings.
In Re: Estate of
Gloria Eleanor Franklin vs. W. Jess Waltman - E2003-00926-COA-R3-CV
View
Cocke
County - The Trial Court following an evidentiary hearing, held
decedent's holographic will to be conditional and inoperative. On appeal, we
reverse.
Kenneth Emert vs. City of
Knoxville - E2003-01081-COA-R3-CV View
Knox County -
The original plaintiff, since deceased, tripped on an uneven brick sidewalk and
injured his right knee. He was blind, or nearly so, and used a walking aid. The
defendant's negligence is not an issue on appeal. The issue is one of causation
in light of the medical proof that the plaintiff suffered knee problems before
the accident. The trial judge found that the accident aggravated the
plaintiff's pre-existing condition and awarded damages of $100,000.00 with
fault apportioned 80 percent to the defendant. We affirm.
Dayne O 'Bannon vs. Stephanie O'Bannon -
E2002-02553-COA-R3-CV View
Bradley County -
This appeal from the Bradley County Circuit Court questions whether the Trial
Court erred in denying the Wife's proposed relocation to South Dakota and in
changing custody of the parties' children from Wife to Husband. We affirm the
judgment of the Trial Court.
Stacey
Schmalhofer vs. Bryan Schmalhofer - W2002-01540-COA-R3-CV
View
Shelby
County - This is a child custody case. The parties were married in
1995. At that time, both were in the military and lived in North Carolina.
About a year later, the parties had a daughter, who is the subject of this
dispute. The father left the military. In 1999, after the mother received
military orders, the parties moved to the navy base in Millington, Tennessee.
Within a few months, the parties separated, and the father moved back to his
hometown in Pennsylvania. In 2001, both parties petitioned for divorce. At the
trial, the only dispute was over custody of the parties' minor child. After a
bench trial, the trial court granted custody to the mother, based in part on
the benefit of the child remaining in the same surroundings, rather than moving
to Pennsylvania with the father. The father filed this appeal. While the appeal
was pending, the appellate court granted the father's motion to consider the
post-judgment facts that the mother had remarried, her new husband is also in
the military, and that she and her new husband want to accept orders to move to
England with the child. In light of the post-judgment facts, we reverse the
trial court's custody determination and award custody to the father.
The Hardison Law Firm vs. Calvin Howell -
W2002-01945-COA-R3-CV View
Shelby County -
This appeal arises from the breach of a commercial lease. Appellant/Landlord
breached lease by failing to provide around the clock security guard as
required by the lease. After notice and time to cure, Appellee/Tenant vacated
lease and moved its offices to a new building. Appellee/Tenant sued
Appellant/Landlord for breach to recover moving expenses, relocation costs,
increased rents, and attorneys fees. Appellee/Tenant was granted partial
summary judgment on the issue of Appellant/Landlord's breach of the lease.
After a separate hearing on damages, Appellee/Tenant was awarded judgment
against Appellant/Landlord. Appellant/Landlord appeals both the grant of
partial summary judgment and the award of damages. We affirm as modified
herein.
Gloria Guinn vs. Lucious Guinn -
W2002-02225-COA-R3-CV View
Shelby County -
This is an appeal from a final divorce decree awarding Wife an absolute divorce
on the ground of inappropriate marital conduct. This appeal comes to this Court
without a record and only a statement of the evidence. For the following
reasons, we affirm in part and remand for further findings consistent with this
opinion.
Cases posted the week of 11/10/2003
Angela Taylor vs. Douglas Fezell -
E2002-02937-COA-R3-CV View
Greene County
- In post-divorce action by husband, the Trial Court refused to void trust
provision in Marital Dissolution Agreement and calculated child support.
Husband appealed, we affirm.
In Re: C.R.B. and
A.L.B. - M2003-00345-COA-R3-JV View
Robertson County -
This appeal involves the termination of the parental rights of the mother of
two children under the age of six. The mother is a chronic substance abuser who
voluntarily surrendered custody of her children to another family in 1999. The
Tennessee Department of Children's Services removed the children from this
family in 2000 and established a parenting plan designed to reunify the mother
with her children. In September 2001, the Department filed a petition in the
Juvenile Court for Robertson County seeking to terminate the parental rights of
the mother and the fathers of the two children. Following a trial in October
2002, the juvenile court entered an order on December 30, 2002, terminating the
parental rights of all parents. Only the mother has appealed. We have
determined that the December 30, 2003 order does not comply with Tenn. Code
Ann. § 36-1-113(k) (Supp. 2003) and, therefore, that the case must be
remanded for the preparation of findings of fact and conclusions of law as
required by In re D.L.B., ___ S.W.3d ___, ___ (Tenn. 2003).
Rena Thompson vs. Charles Hensley -
E2003-00456-COA-R3-CV View
Monroe County -
Rena Thompson ("Plaintiff") filed this lawsuit claiming her grandson, Charles
Hensley, and his wife, Karen Hensley (collectively "Defendants"), breached an
oral contract. Specifically, Plaintiff claims she conveyed her house and real
property to Defendants in exchange for their oral promise to take care of her
and allow her to remain living in the house with them. Plaintiff suffered a
stroke and went to live with her son, Perrian Hensley ("Plaintiff's son" or
"her son"). After living with her son for approximately one year, Plaintiff
wanted to return to her house. When she was not allowed to return to her house,
Plaintiff sued Defendants for specific performance. The Trial Court found there
was no contract. Plaintiff appeals. We affirm.
Hollingsworth, Inc. vs. Ruth E. Johnson -
E2002-02561-COA-R3-CV View
Anderson
County - This appeal questions the holding of the Trial Court
regarding the right of a corporation to claim bad debt credits for sales tax
remitted relative to health club membership contracts which were subsequently
defaulted upon. We affirm in part and reverse and dismiss in part.
RDM vs. Dept of Children's Srvcs - E2003-0330-COA-R3-CV
View
Roane County -
The Trial Court terminated parents' parental rights. The father has appealed.
We affirm the Trial Court.
Pache Industries
vs. Wallace Hardware - E2003-01483-COA-R3-CV View
Hamblen County
- Pache Industries, LLC ("Plaintiff") sued Wallace Hardware Co., Inc.
("Defendant") for unpaid invoices. Defendant was served with the summons and
complaint, but did not answer within thirty days. Plaintiff filed a motion for
default judgment. After being served with the motion for default judgment,
Defendant hired an attorney, filed an answer to the complaint, and filed
responses to discovery requests. The Trial Court granted Plaintiff a default
judgment. Defendant filed a motion to set aside the default judgment. The Trial
Court denied the motion. Defendant appeals. We affirm.
Dept. of Children's Services vs MW -
E2003-00325-COA-R3-CV View
Hamblen County -
The Trial Judge held the minor child was dependent and neglected and that the
mother had committed severe child abuse against her child. Custody was awarded
to DCS who was relieved of making reasonable efforts to reunify the mother and
child. The mother appealed, insisting there is no evidence to support the Trial
Court's findings. We affirm the Trial Court.
Richard Feldman v. Board of Medical Examiners -
M2002-02784-COA-R3-CV View
Davidson
County - This is an appeal from a Chancery Court's review of an
administrative hearing concerning violations of the Tennessee General Rules and
Regulations Governing the Practice of Medicine for advertising. For the
following reasons, we affirm the decision of the Tennessee Board of Medical
Examiners.
Thad Guerra v. Leonard Peeks -
M2002-02580-COA-R3-CV View
Wilson County -
The permit for a sewage disposal system required that the driveway be
constructed along the lot line and be no wider than ten feet. The plaintiffs,
during the course of constructing a residence on their lot, did not locate the
driveway along the lot line as required, and made it twenty-five feet wide. The
system was disapproved by the State unless the plaintiffs obtained a duplicate
area, i.e., procured by easement or purchase square footage equivalent to the
footage utilized by the mis-located, widened driveway. The complaint was filed
more than three years after the disapproval by the State, the date on when the
cause of action accrued, and the action was dismissed. We affirm.
Phillip Watson v. Metro Govt of Nashville -
M2003-00035-COA-R3-CV View
Davidson County
- A truck snagged a cable television service line and tore it, together with
the power lines of NES which were directly above the television line, from the
plaintiffs' residence. Liability was sought to be fastened on NES on the theory
that its service power lines were too low. NES relied on its immunity from suit
under Tennessee Code Annotated § 29-20-204(b) because it had no actual or
constructive notice of any alleged "dangerous or defective condition of a
structure or public improvement." The trial court ruled that the response to
the motion was insufficient and dismissed the suit. We affirm.
Cases posted the week of 11/03/2003
Dept. Children Serv. vs. Bernadette Clark -
W2003-00911-COA-R3-CV View
Gibson County -
This is a termination of parental rights case. The mother appeals from the
order of the Juvenile Court of Gibson County, terminating her parental rights.
Specifically, the mother asserts that the grounds cited for termination are not
supported by clear and convincing evidence in the record. Because we find clear
and convincing evidence in the record to support the trial court's findings, we
affirm.
Dennis Joslin Co. vs. William
Johnson - W2002-01427-COA-R3-CV View
Madison County
- This appeal arises from the order of the lower court denying Joslin's request
for a deficiency judgment against Johnson. Joslin based its request upon a
December 13, 1990 order of the Chancery Court of Madison County, Tennessee that
obligated Johnson to repay a debt to FANB, Joslin's predecessor in interest.
The lower court denied Joslin's prayer for relief, and discharged Johnson's
obligation to satisfy the prior judgment, for two reasons. First, the lower
court based its judgment on the failure of FANB to dispose of Johnson's
collateral in a commercially reasonable manner. Second, the trial court found
that the doctrine of laches bars Joslin's claim. For the following reasons, we
affirm the ruling of the lower court.
Gwendolyn Jackson vs. Zodie Hamilton -
W2000-01992-COA-R3-CV View
Shellby County
- This action arises out of an automobile accident, and Plaintiffs' claimed
damages of lost wages, loss of consortium, medical expenses, and pain and
suffering. The case was tried before a jury, who found in favor of the
Plaintiffs and awarded one of the Plaintiffs $600. Plaintiffs appeal the
verdict, and this Court reverses and remands the case for a new trial.
John Goodman vs. City of Savannah -
W2002-02898-COA-R3-CV View
Hardin County
- This is an age discrimination case involving a mandatory retirement policy. A
firefighter employed by the defendant municipality was forced to retire at age
sixty-two pursuant to the municipality's mandatory retirement policy. The
firefighter then filed this lawsuit against the municipality, asserting that
the mandatory retirement policy violates the Tennessee Human Rights Act by
discriminating against him based on his age. The trial court granted summary
judgment in favor of the municipality. The firefighter appeals. We affirm,
finding that Tennessee Code Annotated section 8-36-205 authorizes the
municipality to adopt a mandatory retirement policy without being required to
establish age as a bona fide occupational qualification.
In Re: C.L.J. - M2003-01949-COA-R9-JV
View
Davidson County
- This appeal involves a dispute over the custody of an eight-year-old boy. The
child's parents never married and engaged in a protracted, bitter custody
dispute until the father died of cancer in 2003. Immediately after the fathe