The following Opinions are available for download:
Cases posted the week of 12/25/2006
John C. Kersey v. Patty Wilson - M2005-02106-COA-R3-CV View
Davidson County - A member of a Methodist Church sued another member of the same church for defamation because of a remark she allegedly made about a poem he had posted on a church bulletin board. The defendant filed a motion for a judgment on the pleadings. After a hearing, the trial court granted the motion and also enjoined the plaintiff from having any further contact with officials or members of the church. We affirm the judgment on the pleadings, but vacate the court’s injunction because it is overly broad.
Kenneth Smithson, II v. Inge Smithson - M2006-00269-COA-R3-CV
View
WIlliamson County - Husband appeals the parenting plan adopted by the trial court, the award of rehabilitative alimony and attorney’s fees, and the award of child support as a result of the divorce granted to Wife. We affirm the adoption of the parenting plan and award of attorney’s fees. We modify the rehabilitative alimony award as well as the child support award. The modification of the child support award is in confirmance with the stipulation of the parties on appeal and the appropriate calculations under current child support guidelines. The cause is remanded for further proceedings.
In Re: R. M. S., A. D. S., & D. C. S. - M2005-01979-COA-R3-PT View
Cheatham County - This is a termination of parental rights case. The three children involved in this action lived with their mother and the mother’s boyfriend. The oldest child reported to authorities that the mother’s boyfriend had sexually abused her. The State was notified of the allegations, and the mother was ordered to keep the children away from the boyfriend. The mother, however, did not believe her daughter’s allegations of abuse, and the boyfriend continued to live with her and the children. Consequently, the children were removed from the mother’s home and placed in protective custody. While in State custody, all three children underwent extensive counseling. Eventually, all three reported to their counselors a variety of serious acts of abuse by the mother’s boyfriend and by the mother as well. The mother made only minimal attempts to fulfill the requirements of the children’s permanency plans and continued to live with the boyfriend. The State filed the instant petition to terminate the mother’s parental rights on the grounds of abandonment, failure to comply with the permanency plans, and persistent conditions which led to the children’s removal. After a five-day trial, the trial court granted the State’s petition on all grounds. The mother now appeals. We affirm, finding that clear and convincing evidence establishes grounds for termination, and that terminating the mother’s rights is in the children’s best interest.
Charles Hampton’s A-1 Signs v. American States Ins. - M2005-01720-COA-R3-CV View
Dickson County - This is an insurance case. The plaintiff installs steel structures that hold billboard signs. On one of the sign structures, the sign fell from its sign pole after installation. An investigation revealed a defective weld between the sign pole and the mounting plate. A subsequent investigation indicated that all sign poles fabricated by a particular sub-contractor had similar defective welds. The plaintiff sued the sub-contractor for breach of contract on 78 structures and obtained a default judgment. The plaintiff then filed the instant lawsuit against the sub-contractor’s liability insurer, alleging that it was liable under the sub-contractor’s commercial general liability policy and umbrella policy. The defendant insurer filed a motion for summary judgment. The trial court granted it in part, narrowing the plaintiff’s claim to the sign structures which showed physical damage. After a bench trial, the trial court found there was coverage and entered a judgment in favor of the plaintiff. We reverse, holding that physical damage arising out of and confined to the defective welds performed by the insured is not covered under either the commercial general liability policy or the umbrella policy.
Jeremy Flax, et al. v. DaimlerChrysler, et al. - M2005-01768-COA-R3-CV View
Davidson County - This appeal comes from a wrongful death action brought by the parents of an infant child who died from injuries suffered in an automobile accident. In 2001, the mother was one of several passengers involved in a collision in which a man, driving his pickup truck and speeding, rear-ended the minivan occupied by mother and her infant son. The plaintiff parents’ infant son suffered a fatal injury when his head collided with the head of another occupant of the vehicle, who was seated in the passenger seat directly in front of the child and whose seat fell backwards during the accident. The mother and father of the deceased child brought suit against the manufacturer of the minivan and the man who drove the truck that struck the minivan. The parents’ claims against the manufacturer were for wrongful death of their son as a result of the manufacturer’s defective design of the front seat backs in the minivan and failure to warn of the defect, and the mother also brought a claim against the manufacturer for negligent infliction of emotional distress as a result of witnessing her son’s injury. The jury found for the parents and awarded them $5 million in compensatory damages for the wrongful death claim, and awarded the mother $2.5 million for her negligent infliction of emotional distress claim. The jury also found that the manufacturer had acted recklessly and was liable for punitive damages. The trial court bifurcated the trial, and the jury returned a $98 million punitive damages verdict against the manufacturer. The trial court remitted the punitive damage award to $20 million. The manufacturer filed a timely notice of appeal to this Court alleging several errors at trial: that the parents’ complaint contained an invalid ad damnum clause; that the plaintiff mother had not satisfied the proof requirements for a negligent infliction of emotional distress claim; that there was insufficient evidence of recklessness to support an award of punitive damages; that the trial court improperly recognized a post-sale duty to warn in Tennessee; numerous evidentiary errors and alleged discovery abuse warranting a mistrial; and excessive damage awards. We affirm in part and reverse in part.
Hal Gerber v. Robert R. Holcomb - M2005-02731-COA-R10-CV View
Shelby County - Attorney filed an action against client to collect unpaid installments due under a promissory note. The trial court entered a consent final decree awarding attorney the sum currently due under the note. Attorney filed a second action against client to collect the then unpaid installments due under the same promissory note. Client answered alleging affirmative defenses which attacked the validity of the note and which were not raised in the first proceeding. Attorney filed a motion for summary judgment claiming that client was precluded from asserting the defenses under the doctrine of res judicata and collateral estoppel. The trial court denied the motion and attorney filed an extraordinary appeal. We reverse the judgment of the trial court and remand the matter for further proceedings consistent herewith.
Mary Stillwell, Decedent by and through Husband, H. Chester Stillwell v. Kenneth Hackney, Sr., et al. - M2005-02218-COA-R3-CV View
Davidson County - Invitee fell in gravel driveway of rental property, allegedly due to a partially hidden concrete divider. Invitee ultimately died as result of the fall and invitee, by and through her husband, filed an action against rental property owners. Property owners filed a motion for summary judgment, which the trial court granted, finding that Plaintiff failed to establish an exception to the general rule of landlord non-liability. Plaintiff appealed. We affirm the decision of the trial court.
Harvey Dalton v. Linda Jane Dalton - W2006-00118-COA-R3-CV View
Shelby County - This case involves a trial court’s division of marital property following a divorce. The wife came into the marriage with substantial assets, but the husband had no assets and owed a large debt to the IRS. During the marriage, the wife was continuously employed, and the husband was often unemployed. After the wife found out that her husband had quit one of his jobs, he executed a quitclaim deed conveying his interest in their house to the wife. When they later divorced, the trial court appointed a special master to classify certain assets and debts as marital or separate property. The trial court affirmed the special master’s report with modifications. Both parties now challenge the classification of certain assets and the court’s division of the marital property. For the following reasons, we affirm.
Risa Stock v. Morris Stock - W2005-02634-COA-R3-CV View
Shelby County - This appeal involves a trial court’s distribution of marital property in a divorce proceeding. The parties owned their own business, and the husband generally ran its operations while the wife handled its financial aspects. After the business caught fire, the husband found $240,000 in the company safe. He took the money to a bank and placed it in a safety deposit box. The company’s head of security accompanied the husband to the bank and testified about these events at trial. The wife also had access to the box, and the bank records revealed that she accessed it over thirty times in the next five years. The husband and the security officer returned to the safety deposit box when he learned that the wife intended to file for divorce, but there was no cash remaining in the box. The trial court determined that the wife had dissipated the marital estate in the amount of $240,000 and subtracted half that amount, $120,000, from her award of the marital property. The wife appealed. For the following reasons, we affirm.
Marc Eskin, et al. v. Alice B. Bartee, et al. - W2006-01336-COA-R3-CV View
(Concur) - View
Shelby County - Parents, individually and on behalf of their two minor children, sued various defendants for damages resulting from an automobile accident caused allegedly by the negligence of defendants. The complaint, in addition to seeking damages for the personal injuries sustained by one of the minor children, seeks damages on behalf of the mother and one minor child for negligent infliction of emotional distress. An uninsured motorist insurance carrier filed an answer in the cause and subsequently moved for summary judgment, which ostensibly involved only the claims for negligent infliction of emotional distress. The trial court granted the summary judgment motion but failed to denote that the grant was only a partial summary judgment for that particular claim. We modify the trial court's order by granting only a partial summary judgment and further reverse and remand that grant.
Bobby L. & Rita Holland v. Amelia Jo Dinwiddie d/b/a Jo Dinwiddie, DDS - W2006-00523-COA-R3-CV View
Benton County - The plaintiff patient visited the defendant dentist periodically between 1998 and 2003. Between 2001 and 2003, the defendant performed dental work on the plaintiff including root canals, fillings, and crown work. Over this period, the plaintiff’s dental condition became significantly worse. The plaintiff developed abscesses and infection in his mouth and suffered from substantial dental pain. The plaintiff’s last visit to the defendant was in October of 2003. Over the 2003 holidays, the plaintiff unsuccessfully attempted to contact the defendant for relief from his increasingly painful condition. The plaintiff ultimately received treatment from another dentist throughout 2004. After receiving the plaintiff’s dental records from the defendant in October of 2004, the treating dentist informed the plaintiff that the defendant’s treatment had been negligent. The plaintiff filed a dental malpractice action against the defendant on January 12, 2005. The trial court granted the defendant’s motion for summary judgment based on the one-year statute of limitations for medical malpractice claims, finding that the plaintiff should have discovered the injury by the time of the plaintiff’s last visit to the defendant in October of 2003. The plaintiff filed a timely notice of appeal. We affirm.
Cases posted the week of 12/18/2006
Robert W. Fink, et al. v. Fred M. Crean, et al. - M2005-01364-COA-R3-CV View
Williamson County - The defendant, Mitchell Lee Blankenship, was convicted of aggravated assault with a deadly weapon, a Class C felony, and sentenced as a Range I, standard offender to five years, with one year to serve in confinement. On appeal, he argues that the evidence is not sufficient to support his convictions and that the trial court erred in sentencing by improperly weighing enhancement factors, not applying mitigating factors, and not granting him full probation. We conclude that the evidence is sufficient. Although the trial court erred in applying the multiple victims enhancement factor, we conclude that the sentence imposed by the trial court was justified. We affirm the judgment of the trial court.
Steven A. Davis, Jr. v. April Dawn Davis - M2005-02620-COA-R3-CV View
Sumner County - Appellant appeals the denial of a Tenn. R. Civ. P. 60.02 motion for relief from a Final Decree of Divorce as it relates to child custody. Appellant asserts that the judgment is void for lack of jurisdiction under the UCCJEA due to the entry of a previous order of protection in the Alabama family court. We affirm.
Katherine L. Davis v. Julie Matteson, individually and d/b/a/ Matteson Heat, Air and Refrigeration - M2005-02705-COA-R3-CV View
Davidson County - Appellant challenges trial court’s order denying Appellant’s motion to set aside an order imposing sanctions and granting a default judgment, which was entered after Appellant’s prolonged refusal to respond to discovery requests. We affirm
Jerry Peterson, et al. v. Henry County General Hospital District, et al. - W2006-01393-COA-R3-CV View
Henry County - This is a premises liability case. Plaintiff/Appellant allegedly suffered injuries after slipping in a pool of water that was allowed to stand on the Hospital/Appellee’s floor. The trial court ruled that Hospital/Appellee had no actual or constructive notice of the water and entered judgment in favor of Hospital/Appellee. Plaintiff/Appellant appeals. We affirm.
Penny W. Hester v. Harry F. Hester, Jr. - M2004-03023-COA-R3-CV View
Sumner County - This is a divorce case. At the time the parties married, both worked full time. In 1994, the husband quit his job and started a business. In the early stages, the wife contributed to the business financially and performed part-time work for it as well. The business prospered and, eventually, the wife became a full-time homemaker. The parties separated and later filed for divorce. After two hearings, the trial court granted the parties a divorce, named the wife primary residential parent of the parties’ minor child, ordered the husband to pay child support, divided the parties’ marital estate, and awarded the wife rehabilitative alimony for seven years and alimony in solido for attorney’s fees. As part of the property division, the trial court awarded the wife a substantial sum of money to be paid from the earnings of the business in monthly installments for ten years without interest. The wife appeals the division of marital property, the decision not to award post-judgment interest on the sum to be paid from the earnings of the business, and the amount and duration of the rehabilitative alimony award. We affirm.
Cynthia Eganey v. Raymond Eganey, Jr. - M2005-01755-COA-R3-CV View
Williamson County - This case involves issues arising out of the parties’ divorce. The trial court divided the parties’ marital assets and debts, awarded Wife alimony in futuro, and ordered Husband to pay Wife’s attorney’s fees. Husband challenges the award of alimony, arguing that Wife is not relatively economically disadvantaged, or alternatively, that any award should be limited to rehabilitative alimony. Husband also challenges the trial court’s division of marital property and its order requiring him to pay Wife’s attorney’s fees. For the following reasons, we affirm.
Lost Mountain Development v. Rufus King v. Matthew Kezar, et al. - M2004-02663-COA-R3-CV View
(Concur) - View
Franklin County - This case involves a creditor’s entitlement to a deficiency judgment after a foreclosure sale in which the creditor was the only bidder, and in which he paid considerably less for the large tract of mountaintop property than the debtor alleged it was worth. The trial court awarded the creditor’s successor-in-interest a deficiency judgment of over $4 million, holding that in accordance with the rule of Holt v. Citizens Central Bank, 688 S.W.2d 414 (Tenn. 1984), the debtor should not be permitted to challenge the legal presumption that the value of the property at the time of foreclosure was equal to the sale price because there was no evidence of “irregularity, misconduct, fraud or unfairness on the part of the mortgagee.” Since the Holt case did not involve a deficiency judgment, we believe it is inapplicable. After examining both the law of Tennessee and that of other jurisdictions, we conclude that the trial court should have permitted the defendant to challenge the presumption by attempting to prove that the sale price was grossly inadequate. We accordingly reverse.
In the Matter of: S. L. A. - M2006-01536-COA-R3-PT View
Fentress County - Mother appeals the termination of her parental rights, contending the evidence was not clear and convincing that she abandoned her child and that termination of her parental rights is in the best interest of the child. The trial court found the mother had abandoned the child by engaging in conduct that exhibited a wanton disregard for the welfare of her child, which conduct included ingesting drugs while pregnant and while breast feeding, and the manufacture of methamphetamine in the family home. We affirm.
John Ruff v. James G. Neeley & ePerformax, Inc. - W2006-01192-COA-R3-CV View
Shelby County - This case involves a claim for unemployment benefits after an employee was terminated for failing to follow company policy and refusing to follow his supervisor’s instructions. A female co-worker had previously complained about the claimant’s repeated attempts to ask her out on dates and several occasions when he had followed her to her car, all of which had made her uncomfortable. The claimant was suspended for two days at that time. A few months later, another female co-worker complained to her supervisor about the claimant’s behavior after he continued asking her out on dates for over a month, waited for her at her car, and eventually hugged her at work after she rejected another invitation to go out with him. A meeting was held about the claimant’s conduct, and his female co-worker and his supervisors asked that he agree not to communicate with the co-worker in the future. The claimant would not agree to stop contacting his co-worker, and he was terminated from his employment the next day. He filed for unemployment benefits, which were initially approved by the Department of Labor. On appeal, the Appeals Tribunal found that the claimant was disqualified from receiving benefits because he had been terminated for work related misconduct. The finding was affirmed by the Board of Review, and later by the chancery court. For the following reasons, we affirm.
Opal Woodruff, by and through National Bank of Commerce v. W.C. Sutton, Jr., et al. - W2006-00434-COA-R3-CV View
Shelby County - In 1997, an Arkansas state court adjudged the plaintiff/ward to be incapacitated and appointed a bank to be the conservator of her estate. The conservator bank, acting on the behalf of the incapacitated plaintiff/ward, filed a complaint in 2002 against the defendants. The plaintiff sought to set aside a quit claim deed for property located in Shelby County, Tennessee. The plaintiff/ward had executed the deed in 1996 and transferred title for the property to the defendants. The co-defendant bank, which had obtained an interest in the property through the defendants in 2002 but was not named as a defendant in the complaint, answered the complaint in 2003 and moved for a dismissal. The plaintiff sought to amend the complaint and name the bank as a co-defendant. The co-defendant bank moved to strike the amended complaint. The originally named defendants filed an answer later in 2003, and in 2004 they moved for dismissal based upon the statute of limitations. In 2005, the defendants moved for a dismissal based upon their original defenses and for the plaintiff’s failure to prosecute the complaint. The plaintiff set a trial date in the chancery court, and the defendants moved to strike the trial date. The trial court held a hearing on the defendants’ motions to dismiss and granted the defendants’ motion for dismissal with prejudice for failure to prosecute. The plaintiff moved for reconsideration of the judgment, and the trial court denied the motion. The plaintiff filed a timely notice of appeal to this Court. We reverse and remand for further proceedings.
Ann Gillespie vs. Andrew Gillespie - E2006-00734-COA-R3-CV View
Sevier County - The issue presented in this case is whether the Wife’s alimony award is modifiable due to her remarriage when the divorce decree does not classify the alimony award, stating only that “the [Husband] shall pay alimony to the [Wife] in the amount of five hundred dollars per month for a period of two years.” The trial court, presented with Husband’s petition to modify spousal support, held that the alimony award was “periodic/rehabilitative alimony,” and terminated Husband’s spousal support obligation to Wife because of her remarriage. We hold that the award of alimony is properly classified as alimony in solido, because (1) both the alimony award in the divorce decree and the parties’ marital dissolution agreement provided for a sum certain – $500 per month for two years – with no contingencies that would cause termination of the alimony, such as Wife’s death or remarriage; and (2) the trial court made no finding in the divorce judgment regarding the relative economic status of the parties, nor of the Wife’s need or potential for rehabilitation. Therefore, because an award of alimony in solido is not subject to modification, we reverse the judgment of the trial court terminating Wife’s alimony payments.
Melissa Rhymer, et al vs. 21st Mortgage Corp., et al - E2006-00742-COA-R3-CV View
Hawkins County - In this case defendants moved to arbitrate the dispute since plaintiff signed a contract to arbitrate. Plaintiff pled incompetence to contract, but the Trial Court held that issue was subject to arbitration. We vacate and remand and instruct the Trial Court to decide the issue of incompetency.
R.D.M. vs. Dept of Children's Services, In the Matter of: D.J.M.M., Jr. - E2006-00283-COA-R3-JV View
Roane County - Appellant, who was married to the mother at the birth of the child, claims the Trial Court erred in failing to engage in a comparative fitness test in awarding the child to a person who by DNA testing was shown to be the biological father. We affirm.
C.S.C., et al vs. Knox County Board of Educaiton, et al - E20060-00087-COA-R3-CV View
Knox County - In this class action lawsuit, the plaintiffs alleged that the defendants, the Knox County Board of Education and its superintendent, were guilty of statutory, regulatory, and constitutional violations in the design and implementation of the Board’s evening alternative education program for students who are expelled or suspended from their regular schools. The trial court rejected the plaintiffs’ challenges. The plaintiffs appeal. We affirm.
Edwin R. Oliver v. Prologis Trust - W2006-00584-COA-R3-CV View
Shelby County - In this premises liability case, the minor plaintiff received a severe foot injury while assisting an independent contractor straighten concrete poles with a forklift on defendant premises owner’s property. The plaintiff’s father sued the independent contractor and the premises owner on his minor son’s behalf, alleging negligence and workers’ compensation liability. The trial court tried the workers’ compensation claim first and entered a judgment for the plaintiff. The Special Workers’ Compensation Panel of the Tennessee Supreme Court reversed as to the premises owner, finding that the premises owner was not the statutory employer of the plaintiff. The case returned to the trial court for trial of the negligence claim. The plaintiff voluntarily dismissed the independent contractor from the action, leaving the premises owner as the only defendant. The trial court granted summary judgment in favor of the premises owner, finding that the premises owner owed no duty to prevent the independent contractor from hiring the plaintiff, and finding that the facts of the case did not fall into any exception to the general rule that a premises owner is not liable for the negligence of its independent contractor. The plaintiff filed a notice of appeal, alleging that the trial court improperly granted summary judgment. We affirm.
Tabitha G.Johnson vs. Bobby C. Johnson - E2006-01434-COA-R3-CV View
Hancock County - In this post-divorce case, the father petitioned the trial court to modify the parties’ permanent parenting plan and designate him as the primary custodial parent of the parties’ two minor children. The father alleged that the relationship between the mother and the teenage children was deteriorating to the point that the children had threatened to run away from home, that the children had expressed a desire to live with their father, and that the mother had numerous men come to her residence and spend the night. After a hearing, the trial court held there had been no material change in circumstances justifying a change of custody from the mother to the father. After review, we find that the father’s allegations were largely not substantiated by the proof at the hearing. We do not find that the evidence preponderates against the trial court’s conclusion. The judgment of the trial court is affirmed.
Adam Partin vs. Delores Wallis - E2006-00418-COA-R3-CV View
Knox County - Adam Charles Partin (“Father”) filed a petition to modify his child support obligation claiming that a significant variance existed between his income at the time his child support obligation was originally calculated and his current income. The case was tried and the Trial Court entered an order finding and holding, inter alia, that a significant variance did exist making the child support order eligible for modification. The Trial Court then reduced Father’s child support. Delores Lourraine Wallis (“Mother”) appeals claiming that the Trial Court erred in calculating Father’s income and that a significant variance does not exist. We affirm.
Oscar Sevilla v. Douglas Cox - W2006-01009-COA-R3-CV View
Fayette County - The trial court awarded summary judgment in favor of Defendant in this negligence action.
Karen Ferguson v. Nationwide Property & Casualty, et al. - M2005-02602-COA-R3-CV View
Cheatham County - Apartment manager filed an action against employer and employer’s insurance carrier after they refused to reimburse her for the losses she incurred as a result of a fire that began in the apartment’s main office which was connected to her personal apartment. We affirm the judgment of the trial court granting summary judgment to the defendants.
Brandy Hill Estates v. William Vernon Reeves, et al. - M2004-02682-COA-R3-CV View
Marion County- The plaintiff brought this action to establish that a public road, Pine Grove Road, extended to its northern property line and that it had a right of access to the road. The defendants, owners of the adjoining property and the City of New Hope, Tennessee, contend that the public road terminated short of the plaintiff’s property, within the private property of the defendant property owners, and that the plaintiff had no right of access. The jury found the plaintiff had proved by clear and convincing evidence that the disputed property, which was at the end of the paved portion of Pine Grove Road, was a public road dedicated by implication, and the right-of-way extended to the plaintiff’s property. The defendants appeal. We affirm.
Eugene L. Lampley, et al. v. Melvin D. Romine, et al. - M2005-01726-COA-R3-CV View
Dickson County- In a boundary dispute, the trial court refused to find estoppel by deed since the party raising the estoppel had not relied on the erroneous deeds. We affirm.
Cases posted the week of 12/11/2006
Dept of Children's Services vs. D.A.B. In the Matter of: D.A.E. - E2006-01490-COA-R3-PT View
Knox County - The State of Tennessee Department of Children’s Services (“the State”) filed a Petition to Terminate Parental Rights of D.A.B. (“Father”) to the minor child D.A.E. (“the Child”). The case was tried and the Juvenile Court entered on order finding and holding, inter alia, that clear and convincing evidence existed to terminate Father’s parental rights to the Child under Tenn. Code Ann. §§ 36-1-113(g)(1), (g)(2), and (g)(3), and that termination was in the best interest of the Child. Father appeals claiming that the Juvenile Court erred both in finding that grounds for termination existed and that termination was in the Child’s best interest. We affirm.
Johnny Bane, Sheriff, Smith County v. Michael Nesbitt, County Mayor, Smith County - M2006-00069-COA-R3-CV View
This is a lawsuit filed by a sheriff to resolve a budget dispute. The sheriff sued the county executive, seeking funding to hire new personnel for the sheriff’s department, as well as equipment and training for the new personnel and salary increases for current personnel. The trial court authorized the hiring of several new employees and the reinstatement of three clerks cut from the previous year’s budget. The trial court also authorized the funding necessary to equip and train the additional personnel and awarded a salary increase for the position of chief deputy. The county executive now appeals the decision of the trial court. We reverse the trial court’s order as to the hiring of an additional detective, finding that the trial court did not have authority to approve the hiring of the detective. We also modify the judgment to delete funding for the equipment and training of the detective. We affirm the remainder of the trial court’s judgment.
Arthur Ross, et al vs. Broadway Towers - E2006-00033-COA-R3-CV View
Knox County - Broadway Towers, Inc. (“Broadway Towers”) provides federally subsidized housing for the elderly and disabled. Applicable federal regulations permit Broadway Towers to conduct criminal background checks on applicants and their family members or caretakers who will be residing with the applicant at the facility. Mr. Jack Ross applied for residency at Broadway Towers and also sought permission for his live-in aid, Ms. Barbara Wheeler, to reside on the premises with him. Ms. Wheeler signed an authorization for Broadway Towers to conduct a criminal background check using the name “Barbara M. Wheeler.” Both Mr. Ross and Ms. Wheeler were approved to live on the premises. Broadway Towers later discovered that Ms. Wheeler had a felony forgery conviction under the name “Barbara M. Norwood.” The felony forgery conviction resulted from Ms. Wheeler’s attempt to obtain money illegally from her elderly mother’s bank account by using forged legal documents. Upon learning of Ms. Wheeler’s felony forgery conviction, Broadway Towers served a notice of noncompliance on Mr. Ross requiring him and Ms. Wheeler to vacate the premises. When Mr. Ross and Ms. Wheeler refused to vacate the premises, this lawsuit was filed. The Trial Court ordered Mr. Ross and Ms. Wheeler to vacate the premises. We affirm.
In Re: High Pressure Laminate Antitrust Litigation - M2005-01747-COA-R3-CV View
Davidson County - This is a class action involving antitrust claims brought by indirect purchasers of high pressure laminates (HPL) and products containing HPL in twelve states and the District of Columbia. Following extensive discovery and negotiations, settlements were reached between the settling Plaintiffs and several of the Defendants: International Paper Company, Panolam Industries International, Inc., and Pioneer Plastics Corporation. Four individual Tennessee Plaintiffs filed objections to the settlements, arguing that the trial court should not approve them because the settlements allocate benefits in a population-based approach without regard to the alleged differences in the antitrust laws of the various states. The trial court approved the settlements, finding them fair, reasonable, and adequate under the circumstances. We agree with the trial court that the settling parties were not required to reach an agreement using an approach that analyzes and takes into consideration all of the various differences in state antitrust laws and that allocates benefits accordingly. We affirm the judgment of the trial court approving the settlements over the individual Plaintiffs’ objections.
Holiday Hospitality Franchising v. States Resources, et al. - W2006-00845-COA-R3-CV View
Shelby County - The issue presented in this priority dispute between a first deed of trust holder and a judgment lien creditor involves the legal effect of the inadvertent and erroneous release of the deed of trust. States Resources Corporation (SRC), Defendant/Appellant, holds two liens on the same real property: one as successor-in-interest to a judgment creditor and the other as assignee of a promissory note for a construction loan, secured by a deed of trust originally held by Trust One Bank. Plaintiff/Appellee Holiday Hospitality Franchising (Holiday) also holds a judgment lien that, in relation to SRC’s filings, was filed last in time. SRC appeals summary judgment entered in favor of Holiday and contends that as assignee of Trust One’s note and first-filed deed of trust, it occupies the most senior lien position, notwithstanding the mistaken release of the deed prior to the assignment. Because Trust One’s release was inadvertent and unintended, and because restoring the deed of trust to its original priority position would not prejudice the rights of Holiday, an intervening judgment lien creditor, we hold that, as a matter of law, the mistaken release should be cancelled in part and the deed as to Lot 30 should be restored to its position as first deed of trust. Accordingly, we reverse and remand.
Highwoods Properties, et al. v. City of Memphis, et al. - W2006-00732-COA-R3-CV View
Shelby County - The trial court dismissed Plaintiffs’ cause of action as time-barred under Tennessee Code Annotated §§ 6-51-102(a)(1) & 103. We affirm.
Michael Davenport v. Rick Bates d/b/a RB Auto Sales - M2005-02052-COA-R3-CV View
Davidson County - This case involves the repossession of two vehicles – a car and a truck. The buyer sued the seller claiming that he had repossessed the vehicles in violation of the sales contracts and violated the Tennessee Consumer Protection Act, and he sought punitive damages. The seller counterclaimed that the buyer had first breached their contract by making late payments. The trial court directed a verdict in the seller’s favor on the Consumer Protection Act claim and the request for punitive damages. The court also directed a verdict for the seller on the issue of wrongful repossession of the truck because the buyer had told the seller to take the truck. A jury found that the car was wrongfully repossessed because the seller had routinely accepted the buyer’s late payments, and he had thereby waived his right to repossess for late payments. The jury also found that, after repossession, the seller had not provided written notice to the buyer before he resold the vehicles. As a result, the trial court ordered the seller to pay a statutory penalty to buyer which is available in “consumer goods” transactions. The court also awarded damages to the buyer for the wrongful repossession of the car. After the jury determined the fair market value of the car when it was repossessed, the trial court awarded the buyer damages for the difference in the car’s value and the amount the buyer still owed. The sale of the truck did not produce enough money to cover what the buyer had owed on it. The jury determined the deficiency existing on the truck to be awarded to the seller. The trial court incorporated all these damage awards into a final award to the buyer. On appeal, the seller contends that he did not wrongfully repossess the car because the sales contract specifically provided that he could waive any default without impairing his right to declare a subsequent default. Also, he argues that the evidence does not support the jury’s finding that he did not send the required notices before he sold the vehicles. In addition, he claims that the evidence does not support a finding that the car was bought in a “consumer goods” transaction because the buyer testified that he used it in his business. He also challenges the jury’s valuation of the fair market value of the car and the deficiency owed on the truck. The buyer claims that the trial court erred in directing a verdict on his Tennessee Consumer Protection Act claim. For the following reasons, the trial court’s judgment is affirmed as modified.
State Deptt of Children's
Services v. C. M. B. - E2006-00841-COA-R3-PT View
Knox County - The trial court terminated the
parental rights of C.M.B. (“Mother”)
with respect to her five minor children: D.N.H. (DOB: December
31, 1994), A.T.B. (DOB: March 7, 1997), D.D.B. (DOB: February
2, 1998), D.M.B. (DOB: January 31, 2000), and S.M.B. (DOB: February
21, 2002) (collectively “the children”). The court
did so after finding, by clear and convincing evidence, that grounds
for termination existed and that termination was in the best interest
of the children. Mother appeals. We affirm.
In Re: G.N.S., d/o/b 10/09/03 - W2006-01437-COA-R3-PT View
Madison County - This appeal involves the
termination of the parental rights of the mother and father
of a child under the age of six. At the time of the petition
for termination of parental rights, both parents were incarcerated.
Both parents have a history of drug abuse. The state had taken
custody of the child in 2004 after the father was arrested on
charges of manufacturing methamphetamine in a trailer behind
the home of the child’s
maternal grandmother, with whom the child and father had
been living. Children’s clothing and toys were found
in the trailer. At the time of the father’s arrest,
the mother was incarcerated on shoplifting charges. In February
of 2005, the juvenile court granted custody to the child’s
paternal aunt and uncle, with whom the child’s parents
have a turbulent relationship. In March of 2006, the aunt
and uncle filed a petition for termination of parental rights
in the juvenile court. In May of 2006, the juvenile court
held a hearing and determined that the parents had abandoned
their child and that termination of their parental rights
was in the child’s best interests. The juvenile court
entered a final order within thirty days that incorporated
by reference its oral factual determinations and legal conclusions
from the proceedings. Because the trial court failed to comply
with the statutory requirements set forth in Tenn. Code Ann. § 36-1-113(k)
in its final order, we remand the decision to the juvenile
court for the preparation of findings of fact and conclusions
of law.
Susan Small-Hammer v. Edward Troutt, et al. - M2005-00861-COA-R3-CV View
Sumner County - In this breach of contract action, the plaintiff appeals from an adverse judgment following a jury trial. She contends the trial court erred by denying her Motion in Limine and by giving the jury an erroneous jury instruction. Finding the plaintiff failed to raise either issue in a motion for new trial, which is a mandatory condition precedent, we affirm.
Custom Built Homes, et al. v. John McNamara, et al. v. Edward Harris, et al. - M2004-02703-COA-R3-CV - View
Williamson County - Home construction contractor appeals the trial court’s ru ling that he breached the contract to construct a custom built home. Contractor entered into a written contract with John and Mary McNamara for the construction of their 6,000 square foot home. After tensions between the parties escalated over several months, the contractor left the job site, the McNamaras terminated the contract, and hired other contractors to complete the work. Contractor and the McNamaras each sued the other for breach of contract. The trial court found the contractor breached the contract and awarded the McNamaras damages for the repair and completion of the work, including the cost of a new roof. The contractor appeals contending the trial court erred by finding he was in breach and contending it erred in the calculation of damages awarded to the McNamaras. We affirm in part and reverse in part.
Galadriel Basham, Individually and as Next-Of-Kin of Baby Girl Basham v. Mark K. Greaves, M.D. - M2006-00281-COA-R3-CV View
(Concur) - View
Davidson County - In this medical malpractice action, the plaintiff contends the emergency room physician failed to comply with the applicable standard of care, which she contends is the standard for board-certified emergency room physicians, regardless of the locale in which the physician practices, and that the trial judge improperly instructed the jury concerning the applicable community. The novel issue presented is whether the term “community,” as it applies to the so-called locality rule, can be construed to mean the medical community of specialists who are board-certified as emergency room physicians without regard to the geographic location of their practice. Although we find the issue intriguing, the facts of this case render the issue moot. Accordingly, we affirm.
Richard John Jolly v. Lynette Suzanne Jolly - W2005-01845-COA-R3-CV View
McNairy County - After a decree was entered in a divorce proceeding in Kansas, wife attempted to enforce the decree in Tennessee as it pertains to, inter alia, a division of marital property. The case reached the Supreme Court, and that Court determined that relief sought involved the enforcement of the Kansas decree, and that the decree had not been properly registered and notice given, required by the Uniform Interstate Family Support Act (UIFSA). The case was remanded to the trial court to insure that the registration and notice procedures of UIFSA were followed and that husband be allowed to present defenses thereto. The trial court made a division of the parties' marital property in Tennessee and allowed credit to wife for arrearage of child support decreed by the Kansas court. Husband has appealed. We affirm.
Travis Jones v. State, ex rel. Kea Coleman - W2006-00540-COA-R3-JV View
Shelby County - This is an appeal from the ruling of the Juvenile Court of Shelby County overruling the juvenile Referee’s finding that Appellant’s voluntary acknowledgment of paternity should be set aside under T.C.A. § 24-7-113. Finding that the evidence preponderates against the trial court’s finding concerning fraudulent procurement, we vacate the Order of the trial court and remand for reinstatement of the previous Judgment of the trial court affirming the Referee’s Judgment.
In Re: H.O.K., D.M. vs. M.K. and Dept of Children's Services - E2006-01227-COA-R3-PT View
Greene County - The Trial Court terminated the mother’s parental rights on statutory grounds of abandonment and failure to comply with the plan of care. On appeal, we affirm the Trial Court’s Order of Termination.
Phillip Crocker v. Nancy Jo Crocker - W2006-00353-COA-R3-CV View
Gibson County - This case involves a divorce ending a five year marriage. Wife/Appellee was awarded a divorce on grounds of Husband/Appellant’s inappropriate marital conduct. The trial court awarded Wife/Appellee alimony in futuro. Husband/Appellant appeals the award of alimony in futuro. We affirm.
Larry & Marilyn Conway v. Eastern Savings Bank - W2005-02919-COA-R3-CV View
Shelby County - This is a petition to set aside a foreclosure sale. The plaintiffs, husband and wife, borrowed over $1.1 million from the defendant bank in order to buy the subject home. The plaintiffs later defaulted on the loan. The husband filed a petition in bankruptcy and listed the home as a part of his bankruptcy estate. The bank obtained relief from the automatic stay, accelerated the debt, and began foreclosure proceedings. The day before the scheduled foreclosure sale, the wife filed a petition in bankruptcy and listed the home as part of her bankruptcy estate. The foreclosure sale was postponed. The bank obtained relief from the automatic stay in the wife’s bankruptcy case, and the foreclosure sale was conducted. The bank purchased the home for a credit bid of $750,000. Eight months later, the husband and wife filed this action for injunctive relief and to vacate the foreclosure sale. They alleged, among other things, inadequate consideration and lack of proper notice. The bank filed a motion for summary judgment, which was granted based in part on earlier findings by the bankruptcy court in the plaintiffs’ bankruptcy proceedings. The husband and wife now appeal, again arguing inadequate consideration and lack of notice. We affirm, finding that the plaintiffs failed to proffer sufficient evidence to create a genuine issue of fact for trial.
Cases posted the week of 12/04/2006
Michael Frazier, et al. v. Howard Pomeroy, et al. - M2005-00911-COA-R3-CV View
Davidson County - The plaintiff husband and wife entered into a series of transactions with the wife’s parents that resulted in all the parties living together in property titled jointly to both couples. This dispute arose over the distribution of proceeds from the sale of that property after a falling out between the couples. The trial court, making extensive findings of fact and a thorough accounting, split the proceeds equally, but awarded the plaintiffs their equity in a house previously owned by the defendants, but occupied by the plaintiffs. Because the trial court’s findings are supported by the evidence, we affirm.
David P. Guenther v. Dept of Revenue - M2005-00638-COA-R3-CV View
Davidson County - The trial court’s finding that an independent accountant was not personally liable for sales taxes under Tenn. Code Ann. § 67-1-1443 is affirmed.
Sherri Dyer Kendall vs. Lane Cook, M.D. - E2005-02763-COA-R3-CV View
Knox County - This is an appeal contesting the award of discretionary costs by the Trial Court. We affirm.
Floyd Layman, et al vs. Frank T. Hayes, et ux - E2006-00752-COA-R3-CV View
Cocke County -
An action to have an easement established across defendants’ property resulted in the Trial Court finding an express easement and also by prescription across defendants’ property. We hold plaintiffs’ established an easement by prescription.
Volunteer Concrete Walls vs. Community Trust & Banking, et al - E2006-00602-COA-R3-CV View
Hamilton County - In this breach of contract action, the Chancellor dismissed the Complaint and Counter-Complaint and Ordered plaintiff to remove the lien on the property where the construction of a wall was placed. We affirm.
Citibank South Dakota, vs. Bonnie L. Johnson - E2005-02526-COA-R3-CV View
Knox County - Plaintiff’s action to collect debt incurred by use of credit card by defendant was dismissed by the Trial Court because defendant had not signed a contract to use the card. We reverse.
Jann B. Broyles vs. Thomas Standifer, et al - E2005-02791-COA-R3-CV View
Hamilton County - Jann Broyles (“Plaintiff”) owns land adjacent to land owned by Thomas and Anneliese Standifer (“Defendants”). This dispute involves a pond located primarily on Plaintiff’s property but also partially on Defendants’ property and two other ponds entirely on Defendants’ property. After Defendants erected a dam which diverted the water that had flowed into Plaintiff’s pond, Plaintiff filed suit. Thereafter, Plaintiff cleared a majority of the natural vegetation that was on her land. Several days later there was a very heavy rainfall. The removal of this vegetation resulted in damage to the two ponds on Defendants’ property. Both parties claimed the other had created a nuisance. The Trial Court agreed and determined that both parties had created temporary nuisances. After offsetting Plaintiff’s judgment by the judgment awarded to Defendants, Plaintiff received a net judgment of $785. Plaintiff appeals. We modify the judgment to Plaintiff by increasing it to $4,990, and as so modified, the judgment of the Trial Court is affirmed.
Jeanne L. Schuett v. Egon Horst Schuett, Jr. - W2005-02482-COA-R3-CV View
Shelby County - This is the second appeal of a divorce case involving alimony and child support. In the original divorce proceeding, we reversed the trial court’s holding that the increase in value of the wife’s inheritance was separate property, as well as its award of child support, based on a floating schedule. The case was remanded for the trial court to recalculate the child support, equitably divide the appreciation in value of the inheritance, and then reconsider the division of the marital assets and the award of alimony and attorney’s fees. On remand, the trial court divided the appreciation in value of the inheritance, recalculated the child support obligation, and reaffirmed its remaining rulings. The husband now appeals for the second time, arguing that the trial court erred in awarding the wife alimony in solido and in not applying the new incomes shares child support guidelines. We affirm, finding no abuse of discretion in the award of alimony in solido, and holding that the husband cannot raise the revised child support guidelines for the first time on appeal.
Cases posted the week of 11/27/2006
Paul H. Martin v. Billy W. Long - M2005-02521-COA-R3-CV View
Coffee County - This case is based on the existence of an oral contract. The trial court determined that there was insufficient proof on damages to allow the plaintiff any recovery. We remand the case for findings about the existence and terms of the alleged oral contract.
State vs. Daniel Allyn Hood - E2005-01061-COA-R3-CD View
Sullivan County - Daniel Allyn Hood, (DOB: 12/05/89), a juvenile, was found to be delinquent by the Sullivan County Juvenile Court. The order of that court placed temporary custody of Hood with the Department of Children’s Services (“DCS”) “for an indefinite period of time.” The defendant appealed to the trial court, which, after a jury trial, found the defendant to be delinquent on the basis that he had committed the adult offenses of kidnapping and aggravated rape. The order of the trial court awarded Hood’s custody to DCS, “determinately until his 19th birthday.” The defendant appeals, asserting that the trial court’s decree of a determinate commitment, rather than an indefinite commitment, is erroneous and a violation of the United States and Tennessee Constitutions. The defendant also raises several issues with respect to the propriety of certain jury instructions. We affirm.
Freeman Industries vs. Eastman Chemical, et al - E2006-00416-COA-R3-CV View
Sullivan Coutny - The issue presented in this case is whether the plaintiff can amend its complaint on remand to the trial court after the Supreme Court affirmed dismissal of the plaintiff’s claims on interlocutory appeal. Freeman Industries LLC filed a two-count complaint, alleging unjust enrichment and violations of the Tennessee Trade Practice Act (“TTPA”), Tenn. Code Ann. § 47-25-101, et seq. (2001). The trial court granted defendants’ motion to dismiss the TTPA claim but denied a motion for summary judgment on the unjust enrichment claim. On interlocutory appeal, the Court of Appeals affirmed as modified, and the Supreme Court granted permission to appeal. The Supreme Court affirmed in part and reversed in part and remanded for further proceedings consistent with its opinion. In its opinion, the Court established a new pleading standard for TTPA claims, then held that Freeman’s complaint did not state a cause of action under the new standard. The Court further held that the trial court erred in denying the defendants’ motion for summary judgment on the unjust enrichment claim. On remand, the trial court denied Freeman’s motion to amend its complaint. After careful review, we hold that the trial court abused its discretion by denying Freeman’s motion. Accordingly, we reverse the decision of the law court and remand.
Eatherly Construction v. Dept of Labor & Workforce Development, et al. - M2005-00915-COA-R3-CV View
Davidson County - A construction company appeals the finding it violated an Occupational Safety and Health Administration regulation that prohibits employees from entering a large excavated trench that does not contain adequate protection to prevent the earthen walls from collapsing on employees. The company contends it did not violate the regulation because its foreman was the only one who entered the unprotected trench and a foreman is not an “employee” as that term is defined by the controlling regulations. In the alternative, assuming a violation occurred, the company contends it is not liable because the foreman’s actions constituted employee misconduct. The State of Tennessee Occupational Safety and Health Review Commission found the company in violation of the regulation and liable for the conduct of its foreman. The Davidson County Chancery Court affirmed the decision of the Commission upon a Petition for Review filed by the company. We affirm.
Zachary Rosenberg, et al. v. BlueCross BlueShield, et al. - M2005-01070-COA-R9-CV View
(Concur) - View
Davidson County - This appeal results from the trial court’s order granting a Motion to Compel Arbitration. Two doctors, Zachary Rosenberg, M.D. and Dewayne P. Darby, M.D., sued BlueCross BlueShield of Tennessee (“BCBST”) and the Tennessee Healthcare Network alleging breach of contract, seeking class action status, and requesting injunctive relief under the Tennessee Consumer Protection Act. From the trial court’s order compelling arbitration, the doctors appeal. We affirm.
Douglas Edward Corder v. Valerie Jean Corder - W2005-01711-COA-R3-CV View
(Dissent) - View
Shelby County - This case involves a divorced parent’s obligation to support college-age children. After the divorce, the mother was the primary residential parent for the parties’ two children, who are now adults. In 1999, when both children were still minors, the father’s child support obligation was increased, and he was ordered to provide to the mother financial documents and financial information necessary to assist the children with their private high school and college expenses. The mother later filed a petition for contempt, arguing that the father failed to comply. At a 2001 contempt hearing, the mother asked that the father be held in contempt for, among other things, his failure to provide Mother with his 2000 tax returns for a financial aid application for the older child’s Ivy League college tuition. The trial court reserved the issue until further evidence could be presented. Soon after the hearing, in June 2001, the older child graduated from high school and the father unilaterally reduced his child support payments without seeking a modification of the trial court’s support order. Four years went by without a court hearing, and both children reached majority. In 2005, the father filed a petition to resolve all outstanding matters and close the case. After a hearing, the trial court determined that the father was in contempt of court for his failure to provide the mother with the financial documents necessary to complete a financial aid application for the older child’s college education and awarded damages to Mother. The trial court further held that the father was not permitted to unilaterally reduce his child support payments when the older child graduated from high school and, consequently, assessed a child support arrearage against him. The father appeals. We affirm in part and reverse in part holding, inter alia, that once the parties’ child was emancipated, the trial court was without authority to require the father to provide financial documents to assist her in obtaining college financial aid.
Sandalwood Properties vs. Aaron Roberts, et al - E2006-01163-COA-R3-CV View
Loudon County - In this case, a landlord sought to collect monies from tenants pursuant to the terms of a residential rental agreement. The landlord filed a warrant in the General Sessions Court of Loudon County and was granted a default judgment after the tenants failed to appear for trial. The tenants appealed their case to the Circuit Court for Loudon County, but again failed to appear at trial, and the landlord was awarded judgment. The tenants’ motion for new trial was denied. On appeal, the tenants argue that the Circuit Court erred in denying their motion for new trial because they proved excusable neglect or mistake as the reason for their failure to appear at trial; that venue was improper in Loudon County; that the Circuit Court lacked subject matter jurisdiction; and that they are entitled to attorney’s fees based on the landlord’s alleged violations of the Tennessee Uniform Residential Landlord and Tenant Act. After careful review, we affirm the judgment of the Circuit Court and deny the tenants’ request for attorney’s fees.
Dept of Children's Services vs. R.R.'s In the Matter of : R.R. Jr. - E2006-02785-COA-R3-CV View
Hamblen County - Both parents appeal the Trial Court’s termination of their parental rights. We hold the State established by clear and convincing evidence statutory grounds for terminations, and the terminations were in the children’s best interests.
In Re: Conservatorship of William Joseph Burnett - E2005-01742-COA-R3-CV View
Hamilton County - The trial court removed Gary C. Jenkins as the health care attorney in fact for William Joseph Burnette. Mr. Jenkins appeals, arguing that the trial court erred by retrospectively applying the 2004 statutory amendment to T.C.A. 34-6-204(a)(2)(B), which amendment states that a court may revoke or amend a power of attorney for health care or replace a health care attorney in fact “[u]pon application and good cause.” We affirm the judgment of the trial court.
Thomas Strait vs. Louise Strait - E2005-02382-COA-R3-CV View
Hamilton County - In this post-divorce case, Timothy Alexander Strait (“Husband”) appeals (1) the trial court’s denial of his petition to terminate his alimony in futuro obligation to his former wife, Louise Davenport Strait (“Wife”), and (2) the trial court’s judgment awarding Wife an alimony arrearage of $22,750. Wife raises a separate issue challenging the trial court’s denial of her request for suit fees. As modified, the trial court’s judgment is affirmed.
Larry Koon, et al vs. Dorothy V. Duke, et al - E2006-00008-COA-R3-CV View
Carter County - Larry Eugene Koon and his wife, Elizabeth Ann Koon, proceeding pro se, filed suit against Dorothy V. Duke and Gregory Allen Oaks, seeking to invalidate (1) a warranty deed from Ms. Koon’s mother – “Edna (Bare) Jesse Oaks” – to another of Ms. Oaks’ daughters, the defendant Dorothy V. Duke and (2) subsequent transfers of the subject property. The trial court granted the defendants’ motion to dismiss because of the plaintiffs’ failure to prosecute. Plaintiffs appeal, contending that they did not know that the defendants’ motion was to be considered by the trial court on August 29, 2005, the date on which the motion was heard and granted. We vacate the trial court’s judgment and remand for further proceedings.
Dept of Children's Services vs. C.D.F., et al - E2006-00668-COA-R3-PT View
Loudon County - The trial court terminated the parental rights of C.D.F. (“Mother”) and L.D.F. (“Father”) with respect to their minor children, J.E.F. (DOB: March 8, 1995) and S.M.F. (DOB: August 16, 1998) (“the children”), upon finding, by clear and convincing evidence, that grounds for terminating their parental rights exist and that termination is in the best interest of the children. Mother and Father appeal. We affirm the trial court’s judgment terminating the parental rights of C.D.F. and L.D.F., but vacate a portion of the trial court’s rationale for its judgment.
Dennis Coker v. The Purdue Pharma Company, et al. - W2005-02525-COA-R3-CV View
Shelby County - This is a class action involving federal preemption. The defendants own a series of patents for the prescription pain medication OxyContin®. In prior separate litigation between the defendants and a generic drug manufacturer, a federal district court in New York found that the defendants committed inequitable conduct before the United States Patent Office in procuring the patents. After this order was entered by the federal court in New York, the plaintiff filed the instant class action in Shelby County, Tennessee, on behalf of all consumers of OxyContin, alleging violations of the Tennessee Trade Practices Act, the Tennessee Consumer Protection Act, and common law monopolization. These state law claims were based on the defendants’ conduct before the United States Patent Office. The defendants removed the case to the federal district court for the Western District of Tennessee. The district court remanded the case back to the Tennessee trial court, holding that the finding of inequitable conduct against the defendants by the federal court in New York operated as collateral estoppel on the issue regarding the federal patent laws. On remand, the defendants filed a motion for judgment on the pleadings based on federal preemption. The trial court granted the motion. We affirm, finding that the plaintiff’s antitrust and unfair competition claims, based on the defendants’ conduct before the Patent Office, are preempted by the federal patent laws.
Jerry D. Eckler v. Dr. Lee Allen, et al. - W2005-02501-COA-R3-CV View
Shelby County - This is a medical malpractice action in which Plaintiff alleges Defendant physician failed to obtain informed consent. The trial court awarded Defendants summary judgment upon finding that Plaintiff’s amended expert affidavit failed to comply with Tennessee Code Annotated § 29-26-115(a)(1) and that Plaintiff had failed to file the amended affidavit by the deadline imposed by the court. We affirm summary judgment for Defendant under § 29-26-115(a)(1).
Alena Wharton v. Robert Wharton - W2005-02444-COA-R3-CV View
Crockett County - This case arises from post-divorce proceedings concerning custody of the parties’ minor child. Mother/Appellant appeals from the order of the trial court granting primary residential custody to Father/Appellee. Specifically, Mother asserts that the trial court erred in disallowing testimony at the hearing. Father also raises an issue concerning whether the trial court erred in not making an award of retroactive child support. Finding no error, we affirm.
In Re: A.J.R., et al - E2006-01140-COA-R3-PT View
Greene County - E.M.R. (“Mother”) appeals the trial court’s order terminating her parental rights. After careful review, we reverse the trial court’s decision for two reasons: (1) the permanency plan setting forth Mother’s requirements to achieve reunification with and custody of her children was not entered into evidence; therefore, the trial court erred in finding Mother in substantial noncompliance with the permanency plan; and (2) the evidence did not clearly and convincingly demonstrate that the conditions that led to the children’s removal have continued to persist and are unlikely to be remedied and that termination was in the best interests of the children. We therefore reverse the trial court’s decision to terminate Mother’s parental rights.
Basil Marceaux vs. The Citizen David Norton - E2005-00578-COA-R3-CV View
Hamilton County - The plaintiff, Basil Marceaux, filed a pleading in the trial court which he entitled “Motion for Doctrine of Mandamus.” The trial court dismissed the motion. The plaintiff appeals. We affirm.
Josephine Burchfiel, et al vs. Gatlinburg Airport Authority, et al - E2005-02023-COA-R3-CV View
Sevier County - The plaintiffs filed this trespass action against the defendants, Gatlinburg Airport Authority, Inc. (“the Airport Authority”) and Tennessee Museum of Aviation, Inc. (“the Museum”), seeking injunctive relief and damages as a result of the defendants’ construction of a sign within a right-of-way conveyed by the plaintiffs to the Airport Authority. The trial court granted summary judgment to the plaintiffs, ordering the defendants to remove the sign. The defendants appeal. We affirm.
Lynne Marie Maynor v. Greg Chris Nelson - M2005-02362-COA-R3-CV View
Davidson County - Husband and Wife were divorced on March 11, 1998, at which time the court declared Wife primary residential parent of the parties’ two minor daughters. Husband filed a petition to modify custody on June 24, 2004. At the close of Husband’s proof, Wife moved to dismiss. The trial court granted the motion, finding that Husband’s petition was devoid of merit since the children were influenced and coached in their testimony. Husband appealed. We affirm the decision of the trial court in all respects.
Philip Cooper v. Estate of Eva Friedman Weisberger - W2005-01847-COA-R3-CV View
Shelby County - This is a petition for attorney’s fees in probate. The petitioner attorney was retained to represent the estate in the underlying probate action. After his duties were essentially completed, the representatives of the estate hired new counsel for the estate. The petitioner attorney then filed a petition for attorney’s fees, asserting that there had been an oral contract for 3% of the estate’s assets. The estate’s representatives objected, contending that there had been no agreement on attorney’s fees, and that the amount of the fee requested was excessive. After a hearing, the trial court determined that the parties had entered into the agreement as asserted by the attorney, and that the fee agreement was reasonable at the time it was made. Therefore, the trial court enforced the fee agreement and entered a judgment in favor of the petitioner. The estate now appeals. We affirm, concluding that the evidence does not preponderate against the trial court’s decision.
Rebecca Owings v. William Owings - W2005-01233-COA-R3-CV View
Shelby County -This is a post-divorce petition to modify child support. When the parties divorced in 1995, the mother was granted custody of the parties’ two children, and the father was ordered to pay child support. The father was self-employed. In 2003, the mother filed the instant petition to increase the father’s child support obligation, alleging that the father’s income had increased since the divorce. The mother sought to prove the amount of the father’s income by submitting into evidence his bank statements for the previous three-year period, and calculating from that his average monthly deposits. In response, the father filed an affidavit stating that he received less monthly income from his various business interests than the mother’s proof indicated. At trial, he relied on his own testimony, the testimony of his accountant, and the gross income reported on his federal income tax returns. After a trial, the trial court found the father’s testimony credible and concluded that the father’s income tax returns were the best evidence of his income. Based on the tax returns, the trial court held that the father’s level of income did not result in a significant variance in his child support obligation and consequently denied the mother’s petition. The mother now appeals. We vacate in part and modify in part, finding that the evidence preponderates against the trial court’s holding that the father’s income tax returns accurately reflected his income, as that term is defined in the Child Support Guidelines, and find a significant variance in his child support obligation based on the father’s pretrial affidavit and his testimony as to his income.
Donna Kay Davis v. John W. Davis - W2005-01304-COA-R3-CV View
(Dissent) - View
Shelby County -This is a divorce case. After ten years of marr iage, the parties separated. Subsequently, their marital home was destroyed in a fire. The husband then executed a quit claim deed on the home to the wife. Consequently, the insurance proceeds on the home were paid to the wife, with none distributed to the husband. Both parties then filed for divorce. During the trial, the husband testified that the wife persuaded him to quit claim his interest in the home to her so that she could deal with the insurance company and sell the land on which the home stood. The husband sought a share of the insurance proceeds and the proceeds from the sale of the land. The wife alleged that the husband quit claimed his interest in the home to her as a gift. At the conclusion of the divorce proceedings, the trial court held, inter alia, that the home was a marital asset, despite the existence of the quit claim deed, and granted husband a share of the proceeds from the insurance and the sale of the land. The wife appeals. We affirm, finding that the evidence does not preponderate against the trial court’s conclusion that, by executing the quit claim deed the husband did not intend to make a gift of his interest in the property to the wife.
Cases posted the week of 11/20/2006
In Re: Estate of Harold N. Walker, Deceased Wade Walker v. Ruby Walker - E2006-00157-COA-R3-CV View
Knox County - In 1988, Harold N. Walker and his wife, Ruby Walker, executed separate wills. Harold N. Walker died in December of 2002, and his will was admitted to probate. Letters Testamentary were issued naming Wade Walker Personal Representative of the Estate of Harold N. Walker (“Plaintiff”). Ruby Walker filed a petition seeking, among other things, exempt property, spousal support, and an elective share of the Estate of Harold N. Walker (“the Estate”). Randy A. Walker, Harold N. Walker’s son and a beneficiary under the will of Harold N. Walker, answered Ruby Walker’s petition claiming, in part, that Harold N. Walker and Ruby Walker had executed mutual wills that constituted a contract under which Ruby Walker had waived her right to seek exempt property, spousal support, and an elective share of the Estate. Plaintiff then sued Ruby Walker and Randy Walker seeking, among other things, a determination of whether Ruby Walker had waived all right, claim, and interest to the Estate. After a trial, the Trial Court entered an order finding and holding, inter alia, that no clear and convincing evidence was presented that Harold N. Walker and Ruby Walker had entered into a contract wherein Ruby Walker had given up her right to dissent from her husband’s will. Plaintiff appeals. We affirm.
Lisa Donnelly Gelfand, et al vs. Jo Ann Cook, et al - E2005-02611-COA-R3-CV View
Unicoi County - Following the death of the testator, Allen Dee Cook, his widow and son, as co-executors, filed the testator's 1997 will for probate in the trial court. After the will was admitted to probate, Lisa Donnelly Gelfand and Sandra Donnelly Schweitzer, two of the testator’s stepchildren, filed a complaint in the trial court seeking to establish that a prior irrevocable joint will from 1992 was the last will and testament of the testator. The trial court granted the defendants’/co-executors’ motion for summary judgment after concluding: (1) that the plaintiffs’ failure to produce the original of the first will gave rise to a presumption that it was revoked, and that the presumption of revocation had not been overcome by the requisite degree of proof; and (2) the plaintiffs had failed to file a properly supported claim against the estate. On the first appeal in this case, we concluded that there was a genuine issue of material fact regarding whether the 1992 will had been presumptively revoked, and the plaintiffs’ claim could not be dismissed on that basis at the summary judgment stage in the proceedings. However, we also concluded that the Trial Court correctly determined that the plaintiffs’ claim should be dismissed because they failed to properly file that claim. On remand, the parties disagreed as to whether the plaintiffs’ claim that there was a prior irrevocable will survived our first opinion. The Trial Court held that our conclusion in the first appeal that the plaintiffs had failed to file a properly supported claim resulted in that entire claim being dismissed, regardless of whether there was a factual dispute as to the first will having been revoked. We affirm.
Kristi Lyn Hollandsworth v. James Jackson - W2005-02091-COA-R3-CV View
Dyer County - The trial court denied Father’s petition to modify custody of the parties’ child upon finding no material change of circumstances had occurred. We affirm in part and remand.
Dora W. Moore v. Dept.of Labor and Workforce Dev.l, & U.S. Postal Service - W2006-00438-COA-R3-CV View
Shelby County - This case involves a claim for unemployment compensation filed with the Tennessee Department of Labor and Workforce Development. The claimant was initially denied unemployment benefits based on the Agency’s finding that she had been terminated for work related misconduct. First-level appeals from agency decisions are allowed within fifteen days. The claimant appealed and an in-person hearing was scheduled. She requested a re-scheduling of the hearing, and her request was accommodated. She then canceled the second scheduled hearing and requested a withdrawal of her unemployment claim. Later, she attempted to re-appeal the initial agency determination outside the fifteen-day time limit. She subsequently requested an appeal of the first-level tribunal’s decision allowing her to withdraw her appeal. The second-level board found it lacked jurisdiction because the claimant had not filed her appeal within fifteen days of the determination. Plaintiff claimed she was denied procedural due process because her in-person hearing was not rescheduled. The chancery court affirmed the board’s finding that it lacked jurisdiction. For the following reasons, we affirm.
Cases posted the week of 11/13/2006
State v. R. D. S. - M2005-00213-COA-R3-JV View
Williamson County - A high school student was charged with the delinquent acts of possession of marijuana and drug paraphernalia after those items were found in his truck, which was parked on school grounds. In his de novo appeal of the juvenile court’s adjudication, the circuit court denied the student’s motion to suppress his admission that the marijuana was his. The trial court determined that Miranda warnings were not required because the student was not in custody when he made the incriminating statements. After a hearing, the student was adjudged to be delinquent. We affirm the trial court as to the introduction of the incriminating statements and also affirm the introduction of the seized evidence because the search was subject to the reasonable suspicion standard.
City of Johnson City vs. Pete & Ben Paduch - E2006-00037-COA-R3-CV View
Washington County - Pete and Ben Paduch constructed a 15,000-square-foot addition and, later, a 5,000-square-foot addition, to a building they co-own in Johnson City, Tennessee. The City issued both of the Paduchs a citation for violating a city ordinance by failing to obtain a building permit before constructing the 5,000-square-foot addition. Because of the increased size of the building after the construction of the 15,000-square-foot addition, the building became subject to building code requirements for the installation of a fire control device, such as a sprinkler system throughout the building or a fire wall. The City denied Pete Paduch’s request that the Pauduchs be granted a variance with regard to installation of such a device and, thereafter, the city court, by substitute judge, fined each of the Paduchs fifty dollars for failing to obtain a building permit and ruled that the Paduchs be fined fifty dollars per day until they complied with the building code requirement that a fire control device be installed in the building. The Paduchs appealed the ruling to circuit court. The circuit court accepted the Paduchs’ guilty plea to the charges that they constructed the 5,000-square-foot addition without a building permit and ordered that each pay a fifty dollar fine. The circuit court further ordered that the Paduchs pay retroactive and prospective fines of fifty dollars per day because of their failure to install a fire control device as required by the building code. On appeal, the Paduchs argue numerous issues: that the substitute city court judge was not appointed in accordance with the city charter; that the city court, and therefore the circuit court, erred by assessing fines in excess of fifty dollars; that the circuit court erred in failing to find that the charges against Pete Paduch were barred under the statute of limitations; that the circuit court erred by requiring that the Paduchs affirmatively modify their building; that the evidence preponderated in favor of waiving the ordinance requirement regarding the installation of a fire control device; and that the circuit court abused its discretion by taxing them with discretionary costs. We find no merit in any of these arguments and affirm the judgment of the circuit court. We further deny the City’s request for damages upon grounds that this was a frivolous appeal.
TEG Enterprises vs. Robert Miller - E2006-00551-COA-R3-CV View
Sullivan County - In this action for damages to personal property caused by an allegedly defective storage container, the Trial Court granted Judgment for plaintiffs. We affirm.
Joseph Palanki v. Vanderbilt University, et al. - M2005-02220-COA-R3-CV View
Davidson County - Minor, through mother and next friend, filed a medical malpractice action against hospital for the admittedly negligent removal of ninety percent of the minor’s bladder. The jury rendered a verdict in favor of Plaintiff for $16,000,000.00. The trial court suggested a remittitur that reduced the amount of Plaintiff’s judgment to $6,500,000.00. Plaintiff accepted the remittitur under protest and filed the instant appeal, seeking a reinstatement of the jury’s verdict and prejudgment interest. The hospital cross-appealed seeking an increase in the trial court’s suggested remittitur, arguing that the judgment was excessive in light of other medical negligence actions and that the trial court erred in admitting testimony about improbable risks of medical complications as a result of infant’s injuries and admitting evidence of pre-majority medical expenses. The decision of the trial court is affirmed in all respects.
Herman Sawyer v. Memphis Educ. Assoc., et al. - W2006-00437-COA-R3-CV View
Shelby County - This case involves allegations of employer discrimination by an African-American male employee. He claimed that he experienced race and gender discrimination because he was treated differently than his co-workers who were African-American females and a white male. He also claimed to have been retaliated against after he filed various grievances and complaints against his employer, and he alleged outrageous conduct on the part of his employer and his supervisor, individually. The trial court dismissed the case, and for the following reasons, we affirm.
Cases posted the week of 11/06/2006
Thomas Edward Gervais v. Cristi Michelle Gervais - M2005-01483-COA-R3-CV View
Montgomery County - A Texas court granted a divorce to an Air Force couple stationed in that state and named the mother primary custodian of the couple’s two daughters. While both parents were deployed overseas, the children lived with their grandparents in Tennessee. Father filed a petition in Tennessee for a change of custody. At the time the petition was heard, the mother had returned to the states and was living with the children at an Illinois air base, and the father was stationed in Alaska. The trial court denied the father’s petition, finding that he had failed to prove that a material change of circumstances had occurred which could not have been anticipated at the time of the initial custody determination. We affirm.
Sheridan Music Group, Inc. v. Bonnie Lynn Bramlett, et al. - M2005-01307-COA-R3-CV View
Davidson County - Sheridan Music Group, a company formed to collect and administer royalties for songwriters, appeals the trial court’s ruling that Letters of Authorization and Instruction signed by a songwriter were terminable at will. The Letters of Authorization specified no time frame and stated the directives therein were “irrevocable unless specifically changed in writing” by SMG. Pursuant to the Letters of Authorization, the songwriter directed any and all companies owing royalties to the songwriter, including BMI and Embassy Music, to pay to SMG royalties the songwriter was entitled to receive. When the defendant songwriter contacted the companies paying the royalties that she was rescinding the Letters of Authorization, SMG filed this action to inter alia enjoin the songwriter from interfering with its contractual right to receive the royalties unless and until SMG revoked the Letters. The trial court found the songwriter had the right to terminate her relationship with SMG, in which event SMG was under a duty to notify the companies owing royalties to the songwriter that the Letters of Authorization were revoked and to pay the royalties directly to the songwriter. We affirm.
Gary Wallace v. Dept. of Corrections, et al. - M2005-01916-COA-R3-CV View
Davidson County - Gary Wallace (“Plaintiff”) is an inmate at the Whiteville Correctional Facility. Plaintiff was sent a package through the U.S. mail which contained illegal drugs. Although the package was intercepted before being delivered to Plaintiff, Plaintiff was disciplined for conspiring to bring illegal drugs into a penal facility. Plaintiff appealed the disciplinary action through the appropriate channels within the Department of Corrections. The disciplinary action taken against Plaintiff was affirmed throughout this process. Plaintiff then filed a petition for common law writ of certiorari claiming the actions of the Department of Corrections and its representatives were illegal, fraudulent, and arbitrary. The Trial Court entered an order giving Plaintiff twenty days in which to make a partial payment toward the filing fee, in accordance with Tenn. Code Ann. § 41-21-807. When Plaintiff failed to make the partial payment as ordered, the Trial Court dismissed the petition in its entirety. Plaintiff appeals, and we affirm.
In the matter of:
D.M.H. and A.L.H., d/o/b 9/16/92 - W2006-00270-COA-R3-JV View
Madison County - This case involves the legitimation
of twin children and two subsequent actions to establish child
support. In the first case, the parties agreed to attempt mediation
of the issues, and it appears that a permanent parenting plan
was agreed upon which provided for equal and joint custody of
the children. Because parenting time was split equally, neither
party was to pay support to the other, but certain expenses
were to be paid by each parent. The parties allegedly signed
the agreement at mediation, and a formal memorandum was subsequently
drawn up and presented to the court. The court approved the
formal memorandum and entered the parenting plan as an order
of the court. In the second action, the mother claimed that
because she had never signed the formal, typed version of the
agreement, the parenting plan was void. The trial court agreed
and set aside the mediated parenting plan. A new plan was entered
by the court awarding primary custody to the mother and ordering
the father to pay child support, which was calculated retroactively
to the date of the children’s birth. The
father timely appealed, and for the following reasons, we reverse
and remand this case for further proceedings.
Lloyd W. Moore, et al. v. Dr.
Ronald D. Teddleton, et ux. - W2005-02746-COA-R3-CV View
Carroll County - This case began as a breach
of warranty and misrepresentation action against a husband
and wife as sellers of property. The buyers had been sued in
a separate action by adjoining landowners who disputed the
boundary between their land and the property purchased by the
buyers. After a judgment was entered against the buyers ordering
them to convey a portion of the property to their neighbors,
they filed suit against the sellers, who had since divorced.
The trial court entered a default judgment against the wife
after she failed to defend the case. The court then dismissed
the husband from the case pursuant to Tenn. R. Civ. P. 19,
finding that he had been an indispensable party to the previous
boundary dispute lawsuit between the buyers and their neighbors,
and that failure to join him in that lawsuit required that
he be dismissed from this subsequent suit. The buyers timely
filed their notice of appeal. The trial court subsequently
entertained and granted the wife’s motion
to set aside the default judgment and ultimately dismissed her
from the suit as well, finding that she had also been an indispensable
party to the boundary dispute action and was not joined in the
lawsuit. For the following reasons, we vacate the trial court’s
order which set aside the default judgment, reverse the trial
court’s order dismissing the claims against the husband,
and remand the cause for further proceedings.
Kelvin Sanders v. Homecomings
Financial and Dyck & O'Neal Incorporated - W2006-00413-COA-R3-CV View
McNairy County - This is a tort action. The defendant
mortgage company serviced the mortgage loans on two homes owned by the
plaintiff. After one of the plaintiff’s
two homes burned down, the plaintiff received insurance proceeds for the destroyed
home. The proceeds were mistakenly applied to the mortgage on the wrong property,
and a deed of release was prepared on the intact home. Subsequently, the defendant
mortgage company recorded an affidavit to reinstate the trust deed and the
funds were paid to satisfy the mortgage on the destroyed home. The plaintiff
filed suit against the defendant. Liberally construed, the plaintiff’s
complaint asserted claims for deprivation of civil rights, tortious interference
with business relationships, and intentional infliction of emotional distress.
The trial court granted the defendant’s motion to dismiss, ruling that
the plaintiff failed to properly serve process on the defendants and the plaintiff’s
complaint failed to state a claim upon which relief could be granted. The plaintiff
appeals. We dismiss the appeal, finding that the plaintiff has not appealed
from a final judgment.
Nathaniel Anton Flowers, et ux
vs. State of Tennessee - E2006-00580-COA-R3-CV View
Davidson County - The Commissioner granted
defendants summary judgment on a medical malpractice
claim. On appeal, we dismiss the case on the failure
of plaintiffs to timely file notice of appeal.
Harvey M. Abouelata and Kristin
G. Abouelata vs. Scott W. Davis and Hope Davis - E2005-02616-COA-R3-CV View
Knox County - In this action for damages
before a jury, based on claims for fraud, breach of contract
and violations of the Tennessee Residential Property Disclosure
Act and the Tennessee Consumer Protection Act, the trial
court directed a verdict for defendants at the conclusion
of plaintiffs’ proof.
We affirm.
Bruce E. Shell, Executor of
the Estate of Jeffrey Michael Murphy,
vs. Ginger Dills - E2005-02636-COA-R3-CV View
Union County - In a dispute over death benefits
from employer, the trial court held designated beneficiary who
later divorced decedent, was entitled to benefits rather than
the estate. We affirm.
Julianne D. Davis vs. Ricky Davis - E2006-00234-COA-R3-CV View
Knox County - In this post-divorce action, Ricky
Davis has filed four Notices of Appeal challenging various orders
of the trial court. Because none of the orders identified by Mr.
Davis are final judgments within the meaning of Tennessee Rule
of Appellate Procedure 3(a), we hold that we do not have jurisdiction
over this matter and dismiss Mr. Davis’ appeals.
State v. Delinquent Taxpayers (Provident Properties) - M2004-00951-COA-R3-CV View
Davidson County - This appeal involves the efforts
of the purchaser of real property at a tax sale to recover the
expenses she incurred to repair the property during the redemption
period. After receiving notice of the redemption, the purchaser
filed a claim in the Chancery Court for Davidson County seeking,
among other relief, reimbursement from the redemptioner for the
repairs she had made to the redeemed property. The trial court,
believing that the tax sale was void, declined to apply the measure
of damages in Tenn. Code Ann. § 67-5-2704(a) (2003) and, following a bench trial, awarded the purchaser $21,764.36 based on the doctrine of mistake. The redemptioner takes issue on this appeal with the trial court’s reliance on the doctrine of mistake. We have determined that the trial court erred by concluding that the tax sale was void and by failing to calculate the purchaser’s recovery using Tenn. Code Ann. § 67-5-2704(a). We have also concluded that the evidence is not sufficient to assess damages under Tenn. Code Ann. § 67-5-2704(a)
and, therefore, that the case must be remanded for further proceedings.
In Re: Est. of Anne Threefoot, Anne Miller v. United States - W2005-02942-COA-R3-CV View
Shelby County - Appellant, Executrix of Decedent’s Estate, filed a request with the Probate Court of Shelby County to authorize the post-mortem transfer of real property to a limited family partnership, which was allegedly established by oral contract entered by and between the Appellant and Decedent prior to Decedent’s death. The United States, Appellee, disputed the Appellant’s
contention that there was an oral contract to form a partnership.
The trial court found that the record did not support an enforceable
oral contract by clear and convincing evidence. Appellant appeals.
We affirm and remand.
Silver Video, Inc., Et AL. vs. Paul Summers, et al. - M2004-00794-COA-R3-CV View
Davidson County - Plaintiffs challenge the trial
court’s determination that the Tennessee Adult Oriented
Establishment Act is constitutional under Article 1, Section 19
of the Tennessee Constitution. We affirm.
In Re: The Estate of James Clifford Smith - M2005-01410-COA-R3-CV View
(Concur) - View
Sumner County - Estate appeals probate court’s determination
that subject estate was liable to Bureau of Tennessee for Medicaid nursing
home benefits correctly provided to a pre-deceased spouse. We reverse.
Dept of Children's Services vs. A.C., et al. - E2006-007474-COA-R3-PT View
Hawkinx County - The State of Tennessee, Department of Children’s Services (“DCS”) filed a petition to terminate the parental rights of A.C. (“Mother”) to her three children, L.A.L.R., K.M.C., and R.S.C. Following a trial, the Juvenile Court determined that there was clear and convincing evidence that grounds existed to terminate Mother’s parental rights pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1), (g)(2), and (g)(3). The Juvenile Court also determined that there was clear and convincing evidence that termination of Mother’s parental rights was in the children’s best interests. Mother appeals, claiming DCS failed to prove by clear and convincing evidence that grounds existed to terminate her parental rights. Mother also claims DCS failed to prove by clear and convincing evidence that termination of her parental rights would be in the best interests of the children. We affirm the Juvenile Court’s
judgment.
William M. Kincaid vs. Southtrust Bank, et al. - M2005-00121-COA-R3-CV View
Davidson County - Plaintiffs appeal the dismissal of
their eleven-count complaint against SouthTrust Bank and two other nominal
defendants. The trial court dismissed the complaint, finding the plaintiffs
had failed to state a claim upon which relief can be granted. The plaintiffs
contend the bank’s dealings with Ed H. Street, Jr., the chief manager of Derby Self Storage LLC, following Derby’s default on a secured indebtedness to the bank, constituted a conspiracy to breach fiduciary duty, a conspiracy to commit constructive fraud and actual fraud. The complaints relate to the fact that Ed Street was relieved of his personal guarantee of Derby’s indebtedness when he executed on behalf of Derby a deed in lieu of foreclosure. The plaintiffs contend the bank’s
actions constituted a conspiracy to breach fiduciary duty, conspiracy
to commit constructive fraud, and fraud. Finding no error, we affirm.
Bernard Gray vs. Shoney's LLC - M2005-00923-COA-R3-CV View
Davidson County - This appeal concerns the respective
rights of a former executive employee and his employer arising from a
Management Retention Agreement. The issue is whether the former executive,
who voluntarily terminated his employment for what he claimed to be good
cause, as defined in the Management Retention Agreement, is entitled
to severance compensation. The agreement afforded the executive the right
to voluntarily terminate his employment, for which he would be entitled
to receive severance compensation, if a significant change in the nature
or scope of his authority as an executive occurred. Contending the conditions
precedent occurred, the executive terminated his employment and made
a demand for the severance compensation. When the employer denied the
claim, the executive filed this action. Following discovery, the executive
moved for summary judgment. The trial court granted the motion finding
the material facts were not in dispute concerning whether good cause
existed, specifically whether a significant change in the nature or scope
of the executive’s authority had occurred, and the executive was
entitled to severance compensation. The employer appeals contending summary
judgment was improper. We affirm.
Larry L. Crain vs. Jewel Chambers - M2005-01236-COA-R3-CV View
Sumner County - This is a petition to vacate the decision
of an arbitration panel. The plaintiff attorney represented the defendant
client in her efforts to nullify a prenuptial agreement and obtain an
elective share of her deceased husband’s estate. The parties executed a retainer agreement. In the agreement, the client agreed to pay the attorney a contingency fee for all of his legal services, except for the collection of a promissory note due from her deceased husband’s estate. As to the promissory note, the client agreed to pay an hourly rate. The attorney then facilitated a settlement between the client and her husband’s
estate as to all issues. After that, a dispute between the attorney and
the client arose as to the amount that the client owed the attorney under
their contingency fee arrangement. The parties submitted their fee dispute
to arbitration. After a hearing, the arbitration committee determined
that the attorney was not entitled to a fee, because the client received
no assets from the estate in the settlement. The attorney then filed
the instant petition to vacate the decision of the arbitration committee,
alleging that the committee exceeded its powers in determining whether
he was entitled to any fee whatsoever, rather than simply determining
the amount of the fee to which he was due. The trial court dismissed
the petition for failure to state a claim on which relief could be granted.
The attorney now appeals. We reverse, finding that the petition properly
avers a claim for relief.
Leonard Hartman vs. Clarence Cunningham, et al - E2005-02663-COA-R3-CV View
Greene county - Leonard Hartman (“Plaintiff”) sued his previous attorney Clarence Everett “Bud” Cunningham (“Defendant Cunningham”) and Attorney Thomas L. Kilday (“Defendant Kilday”) regarding an affidavit obtained by Defendant Kilday from Defendant Cunningham in another case. Both defendants filed motions for summary judgment, which the Trial Court granted finding and holding, inter alia, that the affidavit given by Defendant Cunningham (“the Affidavit”) does not contain privileged information; even if the Affidavit did contain privileged information, the communication was permissible pursuant to Tenn. Sup. Ct. R. 8, RPC 1.6(b); and that Tenn. Code Ann. § 23-3-105
does not provide Plaintiff a private right of action. Plaintiff appeals
to this Court. We affirm.
In Re Estate of Drewry E. Haskins, Jr. - E2006-00209-COA-R3-CV View
Hamilton County - At his death, Drewry E. Haskins, Jr.,
owned shares of capital stock in Catoosa Bancshares, Inc. He bequeathed
the corporate shares to his son, Joseph M. Haskins, and provided in his
will that another son, Drewry Haskins III, should take nothing from his
estate. Drewry Haskins III filed a claim against his father’s estate alleging that his father promised him he would receive his father’s ownership interest in the corporation upon his father’s
retirement or death. The trial court determined that Mr. Haskins failed
to prove the existence of an oral contract with his father and denied
the claim. We hold the trial court did not err and affirm the judgment
of the trial court.
Lee Watkins, et al vs. Woods Memorial Hospital, et al - E2006-00001-COA-R3-CV View
McMinn County - Plaintiffs’ medical malpractice action against Dr. Stuart Sullins was dismissed upon the Trial Court’s granting summary judgment to defendant. Plaintiffs have appealed. We affirm the Trial Court’s
Judgment.
In Re: I.C.G., B.M.D., T.N.C., & T.L.C. - E2006-00746-COA-R3-P View
Hamilton County - In this appeal, S.L.B. (“Mother”) contends that the trial court erred in terminating her parental rights to four of her five children. Mother does not challenge the propriety of the trial court’s order terminating her parental rights as to the fifth child. After careful review of the evidence and applicable authorities, we hold that the evidence does not preponderate against the trial court’s finding by clear and convincing evidence that termination of Mother’s
parental rights was in the best interest of her children. Therefore,
we affirm.
Dept of Children's Services v. Patricia Stinson - W2006-00749-COA-R3-PT View
McNairy County - This is a termination of parental rights case involving two minor children. The mother of both children and the father of one of the children appeal separately from the Order of the Juvenile Court of Hardin County terminating their respective parental rights. Both Appellants assert that the grounds for termination of their parental rights are not met by clear and convincing evidence in the record, and that termination of their parental rights is not in the best interest of the minor children. Because we find clear and convincing evidence in the record to support the trial court's findings, we affirm.
Edgar Beaty, et al. v. Donnie Wright - M2005-01452-COA-R3-CV View
Fentress County - This case arises from a boundary
line dispute. The Plaintiff/Appellee filed suit against Defendants/Appellants
alleging that Defendants/Appellants encroached upon Plaintiff/Appellee’s
land to log. Defendants/Appellants assert that they are the rightful
owners of the disputed tract. Based largely upon a finding of credibility,
the trial court ruled that the disputed tract was owned by Plaintiff/Appellee.
Finding that Plaintiff/Appellee has proved titled by acquiescence, we
affirm.
Compozit Const. v. J. B. Gibbs & Son Const. - M2006-00329-COA-R3-CV View
Davidson County - Plaintiff appeals the trial court’s
ruling that for purposes of the statute of limitations, plaintiff knew
or should have known the identity of the tortfeasor earlier. We affirm
the dismissal of the lawsuit as time barred.
Antonio M. Granda, M.D. v. Daniel D. Warlick - M2005-01248-COA-R3-CV View
Davidson County - Plaintiff appeals the denial of his
Motion for New Trial contending the jury improperly conducted its own
experiments with the evidence. The trial court denied Plaintiff’s motion finding that the jury’s
examination of a laser pointer, which had been admitted into evidence,
amounted to nothing more than the jury closely examining the evidence.
We affirm.
J. Anthony Arena v. Schulman, LeRoy & Bennett - M2005-00613-COA-R3-CV View
Davidson County - An attorney who voluntarily withdrew
from a law firm appeals from the trial court’s decision upholding the validity of an agreement that required him to share fifty percent of the contingency fees he earned on files he took from the firm if he maintained a practice in Davidson County after withdrawing from the firm. The attorney challenges the agreement on the grounds that it violates Tennessee’s public policy against restraints on the practice of law. The firm argues that the agreement does not restrict the attorney’s
right to practice law. We have concluded the agreement contains a significant
economic disincentive to practice law in Davidson County, which is an
impermissible restraint on the practice of law. We therefore reverse.
BellSouth Telecommunications v.Commissioner of Revenue - M2005-00865-COA-R3-CV View
Davidson County - BellSouth Telecommunications seeks
a refund of sales and use taxes assessed on some of its voice mail services.
Following an audit, the Department of Revenue assessed a tax on all but
the most basic of BellSouth’s voice mail services, finding they were subject to the sales and use taxes as “telecommunication” services under Tenn. Code Ann. § 67-6-102(a)(32). When the Department of Revenue denied a refund request, BellSouth filed this action. The trial court ruled in favor of the Department finding the services were taxable as “telecommunication” services.
We affirm.
Mark Wood v. U-Haul Co. of Tennessee - M2005-00600-COA-R3-CV View
Davidson County - This appeal involves a personal injury
claim for a back injury that the Plaintiff claims occurred while he was
helping a U-Haul employee install a trailer hitch on his vehicle. A jury
found the Plaintiff 90% at fault and the Defendant 10% at fault. On appeal,
the Plaintiff claims that the Defendant never presented the affirmative
defense of comparative fault, that the trial court erred in limiting
the testimony of his expert witness so as to exclude his theory that
U-Haul was negligent by not posting signs in the hitch installation area
warning customers against entering, and that there was no material evidence
to support the jury’s verdict. The judgment of the trial court
is affirmed.
In the Estate of: Spencer Brown - M2005-00864-COA-R3-CV View
(Dissent) - View
Dickson County - Four years after the contest of his uncle’s will was filed, Alton Brown filed a Tenn. R. Civ. P. 24 Motion to Intervene in the contest of his uncle’s
will. The motion, however, was not accompanied by a proposed pleading setting
forth the claim for which intervention was sought as required by Rule 24.03.
Subsequent to the filing of the motion, an order of dismissal of the will
contest was entered. Thereafter, the movant filed his proposed pleading following
which the trial court denied the Motion to Intervene based upon a finding
the movant had slept on his rights. Finding no error, we affirm.
Cases posted the week of 10/23/2006
Theressa Booker v. Ricardo Booker, Jr. - M2005-01455-COA-R3-CV View
Montgomery County - This is a divorce case. The trial court granted Theressa Joanne Booker (“Wife”) a divorce from Ricardo Baytonia Booker, Jr. (“Husband”), divided the parties’ property, and decreed an award of alimony in solido and alimony in futuro. Husband appeals, asserting that the division of marital property was not equitable. He also challenges the propriety of each of the alimony awards. We modify the trial court’s award of alimony in futuro so as to make it an award of rehabilitative alimony. As modified, the trial court’s judgment is affirmed.
Jeffrey Radebaugh v. Doris Radebaugh - M2005-02727-COA-R3-CV View
Davidson County - The trial court granted Doris Radebaugh (“Wife”) a divorce from Jeffrey Todd Radebaugh (“Husband”), and designated Wife as the primary residential parent of the parties’ minor son. The court stated from the bench that Husband was “one of the most disgusting humans [it] [had] ever met” and opined that, if the court “had a magic wand,” it “probably would make [Husband] disappear.” Even though, just prior to the hearing below, Wife filed a proposed parenting plan providing for relatively standard visitation for Husband, the court limited Husband’s regular visitation, i.e., non-holiday/vacation time, to one 24-hour period every other week. Husband was ordered to pay child support. The trial court also classified and divided the parties’ property and awarded Wife attorney’s fees in the form of alimony in solido in addition to rehabilitative alimony. Husband appeals, challenging the trial court’s decrees with respect to visitation, child support, property classification and division, allocation of the marital debt, and alimony. We reverse in part, vacate in part, and affirm in part. We direct that, on remand, this case is to be transferred to another judge who will dispose of all pending