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Cases posted the week of 12/24/2007
U. S. Bank, N.A., as servicer for the Tennessee
Housing Development Agency v. Tennessee Farmers Mutual
Insurance Company - W2006-02536-COA-R3-CV View
Gibson County - This is an insurance case.
The plaintiff bank made a home loan to the homeowner and took
a deed of trust as security. Under the loan agreement, the homeowner
was required to obtain a fire insurance policy on the premises.
The defendant insurance company issued a fire insurance policy
covering the house. The policy contained a standard mortgage
clause requiring the insurance company to protect the bank’s
interest and, in turn, requiring the bank to notify the insurance
company of any increases in hazard. The homeowner fell behind
on her monthly mortgage payments, so the bank initiated foreclosure
proceedings. The bank sent a letter to the homeowner stating that
it had begun foreclosure proceedings; it did not notify the insurance
company of these proceedings. Before the foreclosure process was
complete, the homeowner and her husband filed for bankruptcy, which
stayed the foreclosure proceedings. Soon after that, the house was
destroyed by a fire. The bank notified the insurance company of the
loss. The insurance company refused to pay, asserting that the foreclosure
proceedings constituted an increase in hazard of which the bank was
required to notify the insurance company, and that the bank’s
failure to provide such notice constituted a breach of the mortgage
clause in the fire insurance policy. The bank then sued the insurance
company for breach of contract, bad faith refusal to pay an insurance
claim, and violation of the Tennessee Consumer Protection Act. The
bank later filed a motion for partial summary judgment, asserting
that T.C.A. § 56-7-804 indicated that the bank was not required
to provide notice to the insurance company of foreclosure proceedings.
The insurance company filed a cross-motion for summary judgment,
arguing that such notice was required under the policy or, in the
alternative, under the statute. The trial court denied the insurance
company’s summary judgment motion but granted summary judgment
to the bank. The insurance company appeals. We reverse, finding that
the commencement of foreclosure proceedings constituted an “increase
in hazard” under the standard mortgage clause in the insurance
policy and an “increase of hazard” under T.C.A. § 56-7-804.
Malcolm Hinson v. City of Columbia - M2006-02264-COA-R3-CV View
Maury County - The issue presented to this court is whether the Chancery Court was correct in affirming the decision of a civil service board to terminate a city employee on the ground that he “knowingly received pay he did not earn.” On appeal the employee contends that notice of the charge was inadequate and that there was not material and substantial evidence to support the board’s decision. We agree that the notice was inadequate, and we have also determined that the board’s decision was arbitrary and capricious. Accordingly, the Chancery Court judgment is reversed.
Frank Barrett d/b/a/ Barrett Construction Company v. Tennessee Occupational Safety and Health Review Commission - M2006-02338-COA-R3-CV View
Davidson County - In this appeal, we are asked to reexamine whether the Fifty Dollar Fines Clause of the Tennessee Constitution applies to administrative agencies. The Tennessee Occupational Safety and Health Review Commission fined a business owner $950 for various jobsite violations. The business owner appealed to the chancery court, arguing that the $950 fine violates Article VI, § 14 of the Tennessee Constitution. After considering the constitutional argument, the chancery court affirmed the agency’s decision. We affirm, finding that Article VI, § 14 does not apply to administrative agencies.
In Re: The Estate of Henry Atlas Qualls; Amos E. Qualls v. H. J. Q. Klutts, Executrix -
M2006-02776-COA-R3-CV View
Perry County - This is the second appeal by the appellant who again has asked this court to review the Probate Court of Perry County’s denial of his petition. In that petition, the appellant contested the manner in which the Executrix of his late father’s estate administered the estate. We have determined the issue is res judicata and thereby affirm the trial court. We have also determined the appeal is devoid of merit and, therefore, the Executrix is entitled to recover her reasonable expenses incurred on appeal.
J & B Investments, LLC v. Tarun N. Surti, Lata Surti and Arte Corporation, Inc. -
M2006-00923-COA-R3-CV View
Davidson County - Three guarantors of a promissory note appeal the Chancery Court’s decision to hold them liable for the deficiency owing on the note, including interest at the default rate of 24%, following the discharge in bankruptcy of the original debtor. After the debtor defaulted on the $1,500,000 promissory note, the debtor filed for Petition for Relief under Chapter 11 in Bankruptcy Court. The Bankruptcy Court approved the debtor’s plan of reorganization after declaring that the Allowed Claim Amount would be based upon the original interest rate of 8.5%, not the default rate of 24%. In the interim, the holder of the promissory note filed this action to collect a deficiency on the indebtedness, specifically the difference between the default rate of 24% and the original interest rate of 8.5%. The Chancellor ruled by summary judgment that the plaintiff was entitled to collect the deficiency on the indebtedness against the Guarantors, the deficiency being the difference in the interest rates. Following the debtor’s discharge in bankruptcy, the guarantors filed a Tenn. R. Civ. P. 60.02(4) motion contending the indebtedness owing to the plaintiff was satisfied pursuant to the Plan of Reorganization. The Chancellor denied the motion and awarded the holder of the note prejudgment and post-judgment interest at the default rate of 24%, and attorney fees incurred in this and a separate action. The guarantors appealed contending the Chancellor erred in denying their Rule 60 motion, finding the default rate of 24% to be legal, and awarding interest at the default rate prior to notice of default. The guarantors also contended it was error to award the plaintiff attorney fees for services rendered in a separate action. We have determined the debtor’s bankruptcy does not affect the liability of the guarantors and thus does not impair the plaintiff’s right to recover the deficiency. We have also determined the default rate of 24% was not usurious, and the holder of the note was not required to give notice of default to invoke the default rate. Further, we have determined the holder of the note was only entitled to recover attorney fees incurred to enforce the Guaranty Agreements, not to defend related actions that do not pertain to the Guaranty Agreements.
In Re: J. B. W. - M2007-02541-COA-R9-CV View
Montgomery County - This application for an interlocutory appeal concerns whether the Juvenile Court for Montgomery County has jurisdiction over and is the proper forum to consider a parentage and child support action. The putative father is a resident of Georgia. The mother and child resided in Tennessee when the petition was filed, but moved to Georgia shortly thereafter. We concur with the trial court that this is an appropriate case for an interlocutory appeal pursuant to Tenn. R. App. P. 9. Because the father made a general appearance in open court, we reverse the trial court’s determination that it lacked personal jurisdiction over the father. However, we affirm the trial court’s determination that, because both the parties and the child now reside in Georgia, Tennessee is an inconvenient forum and the action should be brought in Georgia.
In Re: The Estate of Joseph Owen Boote, Jr. - M2006-01900-COA-R3-CV View
Marshall County - This is the fourth appeal involving the disposition of the sizeable estate of a Marshall County resident. It is also the second appeal regarding the dispute between the testator’s widow and his children from a previous marriage over the validity of the third codicil to the testator’s will. This codicil dramatically alters the distribution of the testator’s estate because it would entitle his widow, who is barred by an antenuptial agreement from receiving an elective share of her husband’s estate, to receive one-third of the estate. In the third appeal, In re Estate of Boote, 198 S.W.3d 699 (Tenn. Ct. App. 2005), we vacated the judgment of the Chancery Court for Marshall County admitting the will and two codicils to probate in solemn form because we concluded that the widow’s filing of a declaratory judgment seeking to establish the validity of the third codicil amounted to a timely contest of the will and the first two codicils. We remanded the case to enable the trial court, based on evidence presented by the parties, to determine whether the widow had established the purported third codicil as a lost or destroyed testamentary instrument and to enable the testator’s children to contest the validity of any or all of the codicils to their father’s will. Rather than permitting the parties to present evidence regarding all the elements required to establish a lost or destroyed testamentary instrument, the trial court limited the scope of the hearing on remand to (1) whether the testator had validly executed the third codicil and (2) whether the widow should be barred from establishing the third codicil because of unclean hands. The trial court found in the widow’s favor on both issues, and the testator’s children have appealed. They assert that the trial court improperly narrowed the scope of the hearing on remand and that they should have been permitted to present evidence with regard to all the elements needed to establish a lost or destroyed testamentary instrument. We agree and, therefore, vacate the August 30, 2006 and September 13, 2006 orders, and remand the case for further proceedings consistent with this opinion and our earlier opinion.
Dennis Hall, et al. v. Thomas Howell Fowler, et al. - W2006-00385-COA-R3-CV View
Fayette County - In this action to quiet title in ancestral land held as a tenancy in common, the plaintiff co-tenants challenged two deeds conveying a portion of the land to a grantee outside the family. The defendant grantee procured two deeds to an undivided fractional interest in this property for the sum of $3,500. The first deed was executed by some of the heirs of a record co-tenant, and the second deed originated from two sons of a record co-tenant’s non-marital child. At that time, both the co-tenant of record and his non-marital child were deceased. Five days later, the grantee conveyed his interest in the subject property to a subsequent grantee for $21,000. The trial court set aside all deeds to the grantee, in part, on the ground of fraudulent procurement. It also set aside the deed to the subsequent grantee because the grantee had no title to convey. The court quieted title to the subject property in the plaintiff family members according to a series of quit claim deeds they had executed and recorded so as to partition the property among themselves. Further, the trial court ordered, sua sponte, the grantee to return the purchase price of the subject property, plus pre-judgment interest, to the subsequent grantee. Finding support in the record for setting aside the conveyances from only two of the original six grantors, we affirm in part, vacate in part, reverse in part, and remand for a calculation of the respective interests in the property and for a determination regarding the subsequent grantee’s counterclaim for a partition in kind.
Ray A. Wilson, et al vs. Robert J. Schwind, M.D., et al E2007- 00305-COA- R3- CV View
Washington County - In this medical malpractice action, Ray A. Wilson and his wife, Beverly Wilson, (the “Plaintiffs”) sued the anesthesiologist and medical group responsible for administering anesthesia for Mr. Wilson’s cataract surgery. Plaintiffs allege that the improper administration of anesthetic resulted in permanent blindness in Mr. Wilson’s right eye. The defendants filed a Motion for Summary Judgment and attached an affidavit and deposition of an expert witness. At the hearing on the summary judgment motion, the Trial Court granted Plaintiffs’ oral motion to take a voluntary dismissal of their case without prejudice. The defendants filed a motion to alter or amend the order of dismissal so as to be “with prejudice,” and the Trial Court granted the defendants’ motion. Plaintiffs filed a motion requesting a rehearing. At the hearing on Plaintiffs’ motion, the Trial Court set aside its order amending the dismissal to be with prejudice and allowed Plaintiffs 30 days to file an expert witness affidavit in response to the defendants’ Motion for Summary Judgment. Plaintiffs attempted to fax file an affidavit in opposition to the Motion for Summary Judgment. A few months later, Plaintiffs filed a second lawsuit in the same court against the same parties, alleging the same malpractice that was the basis of the first lawsuit. The defendants filed a Motion to Dismiss the second lawsuit. Following a hearing on both cases, the Trial Court found that fax filing an affidavit was not permitted by the Tennessee Rules of Civil Procedure, and therefore, Plaintiffs had not responded to the defendants’ Motion for Summary Judgment. Consequently, the Trial Court granted summary judgment to the defendants in the first case. The Trial Court dismissed the second lawsuit upon finding that the first case was pending when the second case was filed and when the Motion to Dismiss was heard. Plaintiffs appeal. We find no error in the Trial Court’s rulings, and we affirm.
David Lavy d/b/a DL Construction v. Joan Carroll - M2006-00805-COA-R3-CV View
Hickman County - This is a home construction case in which the homeowner appeals the trial court’s decision finding her liable to the contractor for the amount remaining due under their original agreement as well as for subsequently authorized modifications. The homeowner contended below that the contractor’s work was defective, but the trial court ruled that she was required to have given the contractor notice of any defects in his work and then afforded him a reasonable opportunity to cure these alleged deficiencies. On appeal, the homeowner argues that the trial court erred both in finding that she had not done this and in holding that these actions were required of her as a matter of law. We affirm.
Jerry C. Harlan v. Carol L. Soloman - M2006-01419-COA-R3-CV View
Williamson County - This is an action filed by both Appellant Harlan and Appellee Soloman for the sale for division of real property. The property was sold and all liens and costs associated with the sale were paid out of the proceeds. The remaining funds were distributed to Harlan and Soloman in proportion to their ownership interest. The trial court also required Harlan to bear his proportional share of the losses and denied his request to receive his proportional share of the fair market rental value of the property. Harlan appeals claiming that he is entitled to 16.79% of the net proceeds of the sale (his proportional share) prior to a deduction for the payment of Soloman’s mortgage, that he should not be responsible for a pro rata share of the losses, and that he should be paid for the fair market rental value of his interest. We reverse the trial court on the first issue and affirm on the second and third issues.
In the Matter of: B. D. W and B. W. W. - M2007-00844-COA-R3-PT View
Maury County - This is a termination of parental rights case involving mentally challenged parents. The mother and father had two children, one born in 2002 and the other in 2003. The mother and father were never married. The Department of Children’s Services became involved with the family very soon after each child was born, providing several months of parenting services focused on basic child care. These efforts were largely unsuccessful, and the children failed to thrive. Psychological evaluations of the parents indicated that neither the mother nor the father were mentally or emotionally competent to raise a child. In February 2004, the children were found to be dependent and neglected and taken into protective custody. After removal of the children, parenting services were provided for several more months, with little success. In October 2005, the Department of Children’s Services filed this petition to terminate the parental rights of the mother and the father. After a hearing, the juvenile court granted the petition, finding as grounds for termination mental incompetence, persistence of conditions, substantial noncompliance with permanency plans, failure to establish a suitable home despite reasonable efforts by the Department of Children’s Services, and abandonment for willful failure to pay child support. Both the mother and father appeal this order. We affirm.
Lester P. Lamberth v. Connie M. Lamberth - M2007-00025-COA-R3-CV View
Sumner County - This appeal involves post-divorce criminal contempt proceedings. The father and the mother of two minor children were divorced in 1991. The father filed a criminal contempt petition on April 21, 2006, alleging that Mother violated a court order pertaining to his visitation. The chancery court held a hearing but did not issue a ruling; instead, the court took the matter under advisement. Thereafter, the father filed a “motion” requesting that the court hold mother in contempt for subsequent violations of the same court order pertaining to his visitation. This motion did not indicate that the father sought to hold the mother in criminal contempt. At this hearing, the mother represented herself and was found guilty of criminal contempt. The mother appeals and we reverse.
Chattanooga Fire Fighters Association Local 820 and Tara Weaver, vs. City of Chattanooga, Tennessee, Chattanooga City Council and Chattanooga Fire Department -
E2007-00125-COA-R3-CV View
Hamilton County - Petitioner was disciplined by the Chattanooga Fire Department, which discipline was approved by the City Council. She then petitioned the Chancery Court for a Writ of Certiorari, and the Chancellor, upon conducting a hearing, held that the discipline exceeded that allowed by the City Code, in that the Department had forced her to take leave time against her accrued leave for the days in excess of the 30 days allowed. On appeal, we affirm.
Charles Burnette, et al vs. The Estate of Richard Guider, et al - E2006-01164-COA-R3-CV View
Sevier County - Charles Burnette and Imogene Burnette (“Homeowners”) allege that their driveway was damaged as a result of the faulty repair work of Concrete Maintenance Specialists (“CMS”), a company that employed, among others, Brian Cupp (“Cupp”). The repairs by CMS made use of a product sold by Fischl Enterprises, Inc., aka Lone Star Epoxies (“Lone Star”). Art Fischl is the principal of this corporation. No defect in the product is alleged, only a faulty installation by employees of CMS. Homeowners sued CMS, Cupp, Lone Star and several others (collectively “Defendants”) seeking damages, claiming that CMS is directly liable, Lone Star is liable because CMS was its agent, and Cupp is liable because CMS’s corporate veil should be pierced and Cupp is a principal of CMS. Cupp and Lone Star each filed a motion for summary judgment. Cupp argues that he was only an employee of CMS, not a principal, and thus could not be liable even if CMS’s corporate veil were pierced. Lone Star argues that CMS was not its agent. The trial court granted both motions. Homeowners appeal, arguing that they successfully demonstrated the existence of material factual disputes regarding the issues pertaining to Cupp and Lone Star, and also that the trial court should not have granted summary judgment before ruling on Homeowners’ motion to compel. We affirm.
In Re: T.C.D. - E2007-00302-COA-R3-CV View
Sullivan County - Brian Wesley Davis (“Father”) filed a petition to modify a Final Parenting Plan that, with respect to the parties’ child, granted primary residential parent status to Christine A. Williamson (now Stevens) (“Mother”). Father sought exclusive custody of the child or, alternatively, equal co-parenting time with him. Following a bench trial, the court held in favor of Mother, determining that Father had failed to show a material change in circumstances. Father appeals. We have determined that Father has provided sufficient evidence of a material change in circumstances and has demonstrated that the best interest of the child requires a modification of the existing parenting plan. Accordingly, we reverse the judgment of the trial court and designate Father as the child’s primary residential parent. We remand for further proceedings.
Ralph Davis, et al vs. Daniel Cuel, et al - E2006-02026-COA-R3-CV View
Campbell County - In this boundary line dispute, Ralph Davis and his wife Jackie Davis (“the Davises”) sued Daniel Cuel and Francine Cuel (“the Cuels”), alleging that the Cuels had improperly claimed a portion of the Davises’ property as their own. Existing surveys supported the Cuels’ claim, but the Davises asserted that a prior agreement gave them the right to an additional 0.42-acre tract (“the southern disputed area”) on the Cuels’ side of the survey boundary. The Cuels, meanwhile, believed that they were entitled to more land than the existing surveys indicated, so they hired a surveyor, Dave Bruce, to conduct a new survey (“the Bruce survey”). The Bruce survey indicated that the Cuels are entitled not only to the southern disputed area, but also to an additional area north of it (“the northern disputed area”), on what the earlier surveys had regarded as the Davises’ side. The Bruce survey further indicated that an additional tract claimed by the Davises, immediately north of the northern disputed area, is actually a county right-of-way. The trial court adopted the Bruce survey and awarded both the northern and southern disputed areas to the Cuels. As a consequence of this ruling, the Davises, the plaintiffs in this case, actually end up with less land than they started with. They appeal, claiming that the evidence preponderates against the court’s factual findings, and also that they should have prevailed on a theory of estoppel or acquiescence. We hold that the evidence does not preponderate against the court’s findings, and, even assuming that the Davises did not waive their alternative theories of recovery at trial, the evidence does not support those theories. We affirm.
Gerald Ingle, d/b/a Ingle's Sawmill & Log Co. v. Christopher W. Head and wife, Bernadine L. Head -
W2007-02690-COA-R3-CV View
Hardin County - This appeal involves a motion to set aside an execution on a vehicle. The plaintiff received a judgment against the defendants in the amount of $62,500, which he promptly recorded in the county register’s office. The defendants subsequently purchased a new car, and a sheriff levied execution on the car to partially satisfy the judgment. The defendants filed this motion seeking to have the execution set aside because it was defective for various reasons, and they claimed that a third party held a security interest in the vehicle and had priority over the execution lien. The trial court denied the motion to set aside the execution and ordered the sheriff’s department to sell the vehicle. The defendants appealed. We affirm.
Ashraf Khalil v. Carcar Development, Inc. - M2006-02422-COA-R3-CV View
Davidson County - This appeal arises from two consolidated breach of contract actions involving two separate but nearly identical residential real estate transactions. The buyers brought suit alleging that the seller breached its contracts by failing to complete construction of their homes by the closing date set out in the contracts. After the close of the plaintiffs’ proof, the defendant moved for involuntary dismissal under Rule 41.02 of the Tennessee Rules of Civil Procedure, arguing that the seller’s obligation to sell the homes never arose due to the buyers’ failure to satisfy several conditions in the contracts. The Chancellor granted the defendant’s motion for involuntary dismissal and denied the plaintiffs’ motions to alter or amend. We affirm.
R. Elaine Easterling v. Brenda E. Easterling - M2006-00600-COA-R3-CV View
Williamson County - American Express card holder obtained a guest credit card for her future (now former) daughter-in-law, with the understanding that the future daughter-in-law would reimburse her for any charges. Substantial debt was incurred on the account, and the mother-in-law took out a home equity loan to pay down the debt. At trial, the mother-in-law’s American Express records were admitted into evidence. The trial court found in favor of the mother-in-law. The daughter-in-law appeals, asserting that the American Express records were inadmissible hearsay and should have been excluded. The mother-in-law asserts that, even if the records were inadmissible hearsay, their admission was harmless error because she testified to the same information. The judgment of the trial court is affirmed.
Cases posted the week of 12/17/2007
Eva Hendrix, et al vs. Life Care Centers of America, Inc., et al -
E2006-02288-COA-R3-CV View
Hamilton County - In this wrongful death case, Eva Hendrix (“Daughter”), acting individually and as administratrix of the estate of her mother, the decedent Edith Beck (“Mother”), sued Life Center Centers of America, Inc. (“Nursing Home”) among others. Nursing Home filed a “Motion to Compel Arbitration” based upon an arbitration clause signed by Daughter when Mother was admitted to Nursing Home’s facility approximately four months before her death. Daughter responds that she was not actually authorized to act as Mother’s attorney-in-fact at that time because Mother was still able to make her own medical decisions and therefore the power of attorney never became effective. The trial court agreed. Nursing Home appeals, arguing that Daughter’s power of attorney was effective when she signed the arbitration clause, and that, in any event, an actual or apparent agency relationship existed between Mother and Daughter, and Mother and Daughter “treated the [power of attorney] document as though it was effective.” We find that the evidence does not preponderate against the trial court’s conclusion that the power of attorney was not in effect when Daughter signed the various documents handed to her by Nursing Home. We further hold that Nursing Home’s alternative theories must fail as a matter of law. We therefore affirm.
Mark Midgette, et al. v. Metropolitan Government of Nashville and Davidson County, et al. - M2007-00556-COA-R3-CV View
Davidson County - This is an appeal of three consolidated lawsuits involving an automobile accident in Davidson County. Following a non-jury trial, the Trial Court found that Chad Lankford, who was driving an ambulance for the Metropolitan Government of Nashville and Davidson County (the “Metropolitan Government”), was 67% at fault for the accident. The Trial Court assigned 33% of the fault to Carolyn Murphy, the driver of the automobile which struck the ambulance. The Metropolitan Government appeals claiming the Trial Court erred when it determined that Chad Lankford was negligent, and it further erred when it assigned 67% of the fault to Lankford. We affirm.
Huey Strader v. George Little, Commissioner, et al. - M2006-02652-COA-R3-CV View
Davidson County - Inmate Huey Strader (“Plaintiff”) sued the Tennessee Department of Correction (“TDOC”) and TDOC Commissioner George Little (“Little”) in an effort to rescind a waiver which provided for recalculation of his sentencing credits pursuant to a statute that went into effect after his sentencing date. The Trial Court found that Plaintiff failed to file a completed summons with the Clerk and Master’s office for service upon TDOC, even after the Trial Court directed the Clerk and Master to send two summonses to Plaintiff for that purpose. Little, who had been properly served, filed a Motion to Dismiss, alleging that, as a state officer, he was not a proper party to the lawsuit and that the suit could not proceed because TDOC had not been made a defendant. The Trial Court granted Little’s Motion to Dismiss. The Trial Court also dismissed Plaintiff’s claim against TDOC because Plaintiff failed to file a separate summons for TDOC and, as a result of Plaintiff’s inaction, TDOC had not been served with a summons. Plaintiff appeals. After a thorough review of the record, we find that Plaintiff did comply with the Trial Court’s order by returning a summons to the Clerk and Master’s office to be served on TDOC. Therefore, we vacate the Trial Court’s dismissal of Plaintiff’s claim against TDOC. We affirm the Trial Court’s grant of Little’s Motion to Dismiss.
Russell Irvin Foster v. Valerie N. Foster - M2006-01277-COA-R3-CV View
Davidson County - In the midst of a divorce proceeding, the trial court found the husband in criminal contempt of court. The trial court ordered that the husband pay pendente lite spousal support to the wife in the amount of $115.35 per week. The husband was to mail these payments, postmarked on Friday of each week. The wife filed a “criminal and/or civil” contempt petition, alleging that the husband failed to make 30 payments. A criminal contempt hearing was held, and the court found that the husband had failed to pay the wife her spousal support on 29 occasions. The court entered an order awarding Wife an arrearage judgment in the amount of $3,260.50 and sentenced the husband to 180 days in jail. The husband appeals, arguing that the court should have dismissed the contempt petition because it failed to specify whether it was a civil or criminal contempt charge. In the alternative, the husband argues that the wife failed to prove beyond a reasonable doubt that he willfully failed to comply with the support order. We affirm.
Anthony Robertson v. The Leaf Chronicle - M2007-01025-COA-R3-CV VIew
Montgomery County - The plaintiff appeals the summary dismissal of his defamation action against the defendant. The cause of action arose out of a newspaper article appearing in the defendant’s newspaper, which pertained to the criminal prosecution of the plaintiff on charges for aggravated rape and assault. Contending the Complaint failed to state a cause of action, the defendant newspaper filed a motion for summary judgment. The trial court found there was no material issue of disputed fact and that the plaintiff failed to plead the minimum requirements to state any cause of action. The court also found that he sustained no damages. Finding no error we affirm.
Sandra Yevette Turner, et al. v. Steriltek, Inc., The Vanderbilt University d/b/a Vanderbilt Univ. Med. Center, et al. - M2006-01816-COA-R3-CV View
Davidson County - This appeal involves negligence and medical malpractice. The defendant corporation does off-site sterilization of surgical instruments for the defendant medical center. On July 12, 2002, the defendant physicians were performing surgery on the plaintiff’s daughter at the defendant medical center, using instruments sterilized by the defendant corporation. During the surgery, an agent of the corporation informed the physicians that some of the instruments they were using might be contaminated. After receiving this information, the physicians stopped the surgery before it was completed. As a result, the plaintiff’s daughter had to return to the medical center at a later date, at which time the defendant physicians successfully completed the necessary surgical procedure. The plaintiff filed this lawsuit against the corporation, the medical center, and the physicians, seeking damages for alleged negligence and medical malpractice. The defendants filed motions for summary judgment supported by expert affidavits. The trial court granted the defendants’ motions for summary judgment on all claims. The plaintiff appeals. We affirm in part and reverse in part. We affirm the trial court’s grant of summary judgment as to the plaintiff’s claims against both of the defendant physicians and, accordingly, as to the plaintiff’s claim that the defendant medical center is vicariously liable for the actions of the physicians. We also affirm the grant of summary judgment as to the plaintiff’s claim against the defendant corporation for failure to provide sterilized instruments and batteries, and as to the plaintiff’s claim as a third-party beneficiary to the contract between the corporation and the medical center. As to the remaining claims against the corporation and the medical center, we reverse the trial court’s grant of summary judgment.
Charley Nicole Birdwell v. Stacy Lee Harris - M2006-01919-COA-R3-JV View
Robertson County - The father of a five year old girl filed a petition to have primary custody of the child transferred from the mother to him. After a hearing, the trial court declined to change the custody of the child, finding that the father had failed to show a material change of circumstances, as is required by Tenn. Code Ann. § 36-6-101(a)(2)(B) before such a transfer of custody may be ordered. We affirm the trial court.
Jeff Miller and wife, Janice Miller, et al. v. Beaty Lumber, Inc. -
M2007-00253-COA-R3-CV View
Fentress County - This is a negligence case that resulted in a directed verdict for the defendant. The plaintiff’s minor son was killed when the truck he was riding in collided with a logging truck pulling the defendant’s load of logs. All parties involved in the accident died, and there were no eyewitnesses. The plaintiffs filed suit against the defendant on behalf of their deceased son. At trial, the defendant moved for a directed verdict, which the court granted. The plaintiffs now appeal, alleging that the trial court applied the wrong standard when it granted the directed verdict. Next, the plaintiffs argue that the court should have applied the theory of joint and several liability because the case involved concurrent negligence resulting in an indivisible harm. Finally, the plaintiffs argue that the court erred by excluding evidence relating to the defendant’s liability insurance. We affirm.
Ira Lynn Reagan, As Conservator of the property and person of Hazel Rayborn, an incapacitated person, v. Kindred HC Operating Inc., et al. - M2006-02191-COA-R3-CV View
Putnam County - This appeal involves an arbitration agreement that was executed by a nursing home resident when she was admitted to the nursing home. The resident’s estate has filed an action against the nursing home in circuit court and demanded a trial by jury on all issues. The defendants filed a motion to compel arbitration. The administrator of the resident’s estate argued that (i) the arbitration agreement was incapable of performance for failure of an essential term; (ii) the nursing home breached fiduciary duties it owed to the resident by obtaining her signature on the agreement; (iii) the agreement was an unconscionable contract of adhesion; and (iv) the resident was unable to knowingly agree to arbitrate disputes, thereby waiving her right to a jury trial. The trial court dismissed the motion to compel arbitration without making any findings of fact or conclusions of law. The defendants appeal. For the following reasons, we reverse and remand for entry of an order compelling arbitration.
Anthony Joseph Ziobrowski v. Marcy Hays Ziobrowski - M2006-02359-COA-R3-CV View
(Separate dissenting opinion by Kirby, J.) View
Williamson County - This appeal involves a final decree of divorce that was entered in 1995, and a proposed qualified domestic relations order (“QDRO”) entered pursuant to that decree in 2006. The former husband claims that the proposed QDRO allows his former wife to receive a greater share of his monthly retirement benefit than the trial court awarded to the wife when it divided the parties’ marital property. We reverse and remand for further proceedings.
U. S. Bank, N.A., as servicer for the Tennessee Housing Development Agency v. Tennessee Farmers Mutual Insurance Company - W2006-02536-COA-R3-CV View
Gibson County- This is an insurance case. The plaintiff bank made a home loan to the homeowner and took a deed of trust as security. Under the loan agreement, the homeowner was required to obtain a fire insurance policy on the premises. The defendant insurance company issued a fire insurance policy covering the house. The policy contained a standard mortgage clause requiring the insurance company to protect the bank’s interest and, in turn, requiring the bank to notify the insurance company of any increases in hazard. The homeowner fell behind on her monthly mortgage payments, so the bank initiated foreclosure proceedings. The bank sent a letter to the homeowner stating that it had begun foreclosure proceedings; it did not notify the insurance company of these proceedings. Before the foreclosure process was complete, the homeowner and her husband filed for bankruptcy, which stayed the foreclosure proceedings. Soon after that, the house was destroyed by a fire. The bank notified the insurance company of the loss. The insurance company refused to pay, asserting that the foreclosure proceedings constituted an increase in hazard of which the bank was required to notify the insurance company, and that the bank’s failure to provide such notice constituted a breach of the mortgage clause in the fire insurance policy. The bank then sued the insurance company for breach of contract, bad faith refusal to pay an insurance claim, and violation of the Tennessee Consumer Protection Act. The bank later filed a motion for partial summary judgment, asserting that T.C.A. § 56-7-804 indicated that the bank was not required to provide notice to the insurance company of foreclosure proceedings. The insurance company filed a cross-motion for summary judgment, arguing that such notice was required under the policy or, in the alternative, under the statute. The trial court denied the insurance company’s summary judgment motion but granted summary judgment to the bank. The insurance company appeals. We reverse, finding that the commencement of foreclosure proceedings constituted an “increase in hazard” under the standard mortgage clause in the insurance policy and an “increase of hazard” under T.C.A. § 56-7-804.
In Re: Estate of Thelma Ruth Hare, Deceased - M2007-00563-COA-R3-CV View
Davidson County - The Tennessee Bureau of Tenncare filed a claim pursuant to Tennessee Code Annotated § 71-5-116(c) to recover medical benefits paid on behalf of Decedent from Decedent’s estate. The trial court dismissed the action as time-barred under Tennessee Code Annotated §§ 30-2-307 and 310. The Bureau appeals, asserting its right to recover is not subject to the limitations period prescribed in Title 30. We affirm.
Frazia McDonald, et al. v. Travis Calhoun, M.D., and Jennie Stuart Medical Center, Inc. - M2007-00179-COA-R3-CV View
Davidson County - This appeal involves in personam jurisdiction over out-of-state defendants. The plaintiffs’ decedent was a resident of Kentucky. She was admitted to a Kentucky hospital for a blood clot in her leg. Her treating physician was a Kentucky resident. The next day, the decedent fell in her hospital bathroom and hit her head, causing bleeding in her brain. Soon thereafter, the decedent was flown to a nearby hospital in Tennessee, where she soon died from excessive bleeding in her brain. The decedent’s three children brought this action in Tennessee against the Kentucky hospital and the Kentucky treating physician for wrongful death due to medical malpractice. The defendants moved to dismiss based on, among other things, lack of in personam jurisdiction. The trial court granted the defendants’ motions, finding that the plaintiffs had not established sufficient contacts so as to justify exercising personal jurisdiction over the defendants in Tennessee. The plaintiffs now appeal. We affirm, concluding that the plaintiffs failed to establish a prima facie case of in personam jurisdiction over the defendants.
Timothy Giles Tinnin v. Jennifer Michelle Stamps - M2006-02156-COA-R3-CV View
Davidson County - The trial court increased Father’s child support obligation upon determining Father’s earning capacity had increased from $75,000 in 1999 to $250,000 in 2006. Pursuant to Tennessee Code Annotated § 27-3-128, we remand for further findings.
City of Red Bank, Tennessee vs. Peter H. Phillips - E2006-02267-COA-R3-CV View
Hamilton County - The City of Red Bank (“City”) filed this declaratory judgment action against Peter H. Phillips (“Owner”) alleging that his property at 217 W. Newberry Street was being utilized for multi-family purposes in violation of its single family zoning. Owner admitted to the use of the premises as a three-apartment rental property. He asserted, however, that the non-conforming use of the property was permitted as a “grandfathered” use. Following a bench trial, the court found in favor of the City. Owner appeals. We affirm.
Clinton Cobb vs. Stewart Title Guaranty Co. - E2006-02571-COA-R3-CV View
Hamilton County - In this breach of contract case, Clinton Cobb (“Insured”) alleges that the title insurance company with which he had contracted – Stewart Title Guaranty Company (“Insurance Company”) – has wrongfully failed to honor a claim filed by him, which claim arises out of restrictive covenants that he says make his property unmarketable. Insurance Company filed a motion to dismiss, arguing that the policy specifically and unambiguously excludes restrictive covenants from the ambit of its coverage. The trial court agreed and granted the motion. We affirm.
Judith Ann Ford vs. James W. Roberts, et al - E2007-00088-COA-R3-CV View
Hamilton County - Plaintiff sought to obtain an easement for access to her allegedly landlocked property via a gravel driveway on defendants’ property, purportedly the only reasonable means for ingress and egress. Plaintiff’s complaint prayed for relief by way of an easement by prescription or, in the alternative, by condemnation pursuant to Tenn. Code Ann. § 54-14-101, et seq. (2004). Following a hearing, the trial court denied plaintiff’s request for a prescriptive easement. After amendment of plaintiff’s complaint, her claim for statutory condemnation proceeded before a jury of view. Defendants appeal the trial court’s action allowing plaintiff to amend her original complaint following the first hearing. We affirm.
Claude L. Glass vs. State of Tennessee - E2007-00930-COA-R3-CV View
In this action to recover child support payments from the State
of Tennessee (the “State”), Claude L. Glass,
(“Claimant”) filed a claim with the State Division
of Claims Administration alleging that the State had miscalculated
his child support payments and wrongfully collected money
from his wages, federal income tax returns, and rent payments.
The Tennessee Claims Commission (the “Commission”)
held that the Commission did not have subject matter jurisdiction
and dismissed the case. Claimant appeals. We hold that
the Commission lacks subject matter jurisdiction for claims
to recover alleged excess child support payments, and,
therefore, the Commission did not err by dismissing this
claim. Affirmed and remanded.
Alan P Woodruff vs. Anastasia International,
Inc. - E2007-00874-COA-R3-CV View
Sevier County - Alan P. Woodruff (“Plaintiff”),
a Tennessee resident, filed suit in Sevier County Circuit Court
for breach of contract and other claims against Anastasia International,
Inc. (“Defendant” or “Anastasia”),
a Kentucky corporation with its principal place of business in
the United States in Maine. Defendant raised several affirmative
defenses in its answer, including lack of personal jurisdiction
and the forum selection clauses in the parties’ two contracts.
The forum section clauses provide for disputes between the parties
to be litigated in Maine and Kentucky. Defendant then filed a
Motion to Dismiss based on the forum selection clauses. On the
same day, defendant also filed a Motion for Order of Reference
to Mediation “[s]ubject to its Motion to Dismiss, filed
herewith.” Several months later, plaintiff filed a motion
requesting the trial court to rule on defendant’s Motion
to Dismiss. Six days before the hearing on defendant’s
Motion to Dismiss, defendant filed a Supplement to Motion to
Dismiss which raised the issue of personal jurisdiction and included
an affidavit from defendant’s president setting forth facts
in support of the lack of personal jurisdiction defense. Following
the hearing, the trial court granted defendant’s Motion
to Dismiss, holding that the trial court lacked personal jurisdiction
over defendant. The trial court taxed court costs to plaintiff.
On appeal, we affirm the decision of the trial court, although
for reasons other than those given by the trial court. We hold
that defendant waived its lack of personal jurisdiction defense.
However, we also hold that the forum selection clauses in the
parties’ contracts are valid and enforceable. Therefore,
Tennessee is not the proper forum for this lawsuit, and we affirm
the dismissal of plaintiff’s lawsuit. We also affirm the
trial court’s assessment of costs to plaintiff. Affirmed
and remanded.
Robert Joseph Mullins v. Bobby Redmon,
et al. - W2007-00616-COA-R3-CV View
McNairy County - Plaintiff/Appellant, a student
of McNairy County School District, filed a complaint for negligence
against the Defendant/Appellee School District for injuries
arising from an accident that occurred while the student was
engaged in a work-based learning program. Finding that the actions
of the School District did not cause the accident, the trial
court granted summary judgment in favor of the School District.
The student appeals. We affirm and remand.
Anthony Dean vs. Glen Turner, Warden - W2007-00744-COA-R3-CV View
Hardeman County - This appeal involves a habeas corpus petition filed by a prisoner. The appellant prisoner filed a petition for a writ of habeas corpus in chancery court. The chancery court denied the prisoner’s habeas petition. The prisoner appealed. We vacate the judgment and dismiss the petition, finding that the chancery court did not have jurisdiction.
Daniel Francouer and Heather Hall vs. State of Tennessee - W2007-00853-COA-R3-CV View
This appeal involves a motorcycle rider and his passenger who were injured in an accident when they hit a large pothole on a state route highway. The rider and the passenger each filed claims with the Tennessee Claims Commission asserting that the State of Tennessee had failed to maintain the highway in a safe and proper condition. A Claims Commissioner determined that the pothole did constitute a dangerous condition on a state maintained highway pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(J), but she determined that the State was not liable under that subsection because there was no proof that it had notice of existence of the pothole. The Commissioner then found that the State was negligent in maintaining the highway under Tennessee Code Annotated section 9-8-307(a)(1)(I), and therefore it was liable for the plaintiffs’ injuries. The State appeals. We reverse.
Robert Roysden vs. Glen Turner, Warden - W2007-01144-COA-R3-C View
Hardeman County - This is an appeal of a habeas corpus petition filed by a prisoner. The appellant prisoner filed a petition for writ of a habeas corpus in the chancery court. The chancery court denied the prisoner’s habeas petition. The prisoner appealed. We vacate the judgment and dismiss the petition, finding that the chancery court did not have jurisdiction.
Diana S. Lowry v. Tennessee Department of Children's Services -
M2006-02148-COA-R3-CV View
Davidson County - This appeal involves the lower court’s dismissal of a case with prejudice for failure to prosecute. The Department of Children’s Services fired the petitioner, and she requested an administrative hearing. The Administrative Law Judge upheld the termination, and the petitioner appealed to the chancery court in Shelby County. Pursuant to statute, the case was transferred to Davidson County. After one year, the chancellor entered an order that the petitioner schedule the case for a final hearing. The parties set a hearing date, but in violation of local rules the petitioner failed to submit a trial brief. The petitioner’s counsel twice requested a continuance, which was denied each time. The petitioner’s counsel withdrew, and the petitioner decided to proceed pro se. The petitioner was not on time for the hearing at 9:00 a.m. on October 5, 2006. She called the court, notifying all parties that she would be twenty minutes late. The judge waited until 9:40 and called the case, but the petitioner was not present. The judge then sua sponte dismissed the case with prejudice for failure to prosecute. The petitioner submitted a hand-written letter to the court with an explanation for her tardiness. The court treated the letter as a motion to alter or amend, and denied the motion. The petitioner appeals. We reverse and remand.
Michael S. Stenberg v. Hickman County, Tennessee - M2007-00433-COA-R3-CV View
Hickman County - This is a negligence case based on actions of county law enforcement officers. After a night of drinking heavily, the plaintiff pointed a gun at his wife and threatened to kill her or himself. The wife called 9-1-1, and two county law enforcement officers were dispatched to the plaintiff’s trailer home. Upon the officers’ arrival, the plaintiff retreated to his bedroom and refused to surrender his gun. Eventually, the plaintiff agreed to allow the officers to enter his bedroom, and placed the gun near the bed within his reach. In an effort to get the plaintiff under control and away from the gun, the officers made a plan to have one officer spray the plaintiff with pepper spray, with the other officer ready to shoot the plaintiff if he tried to grab his gun. As planned, the first officer sprayed the plaintiff with pepper spray. The plaintiff then lunged in the direction of his gun, and the second officer fired his gun, striking the first officer in the hand and the plaintiff under his arm. The plaintiff filed this lawsuit against the defendant county, alleging that the officers acted unreasonably under the circumstances and arguing that they could have apprehended him without using lethal force. After a bench trial, the trial court held in favor of the county. The plaintiff now appeals. We affirm, finding that the preponderance of the evidence supports the trial court’s finding that the officers acted reasonably under the circumstances.
Terri Allison Hill (now Overcast) v. David Jeffrey Hill - M2006-02753-COA-R3-CV View
Bedford County - This appeal involves post-divorce modification of child support. The parties divorced in 2004 and agreed on a parenting plan under which they shared equal custody of their children, and the father paid the mother an agreed amount in child support. In May 2005, after the new income shares child support guidelines went into effect, the father filed a motion to modify or suspend his child support obligation. The new guidelines required the father to establish a significant variance between his gross income at the time of the divorce and his gross income when he filed his motion. The father was self-employed, however, and his income level at the time of his divorce was undetermined. For comparison purposes, the trial court deemed the income on his 2002 income tax return to be his income as of the date of the divorce. Utilizing this income level, the trial court found no significant variance and denied the father’s motion to modify. The father now appeals, arguing that his income at the time of the divorce should have been calculated by a reverse application of the flat percentages model of the child support guidelines. We affirm, finding no error in the trial court’s use of the father’s 2002 income tax return.
Born Again Church & Christian Outreach Ministries, Inc. v. Myler Church Building Systems - M2006-02701-COA-R3-CV View
Davidson County - This appeal involves subject matter jurisdiction. After a trial, the trial court entered a judgment in favor of the plaintiff church and against the defendant builder on August 10, 2006. The final order was mailed to the attorney for the defendant, but it was mailed to the attorney’s former address. The order reached the defendant’s counsel’s office on August 18, 2006, and it was stamped “received” with this date. Although the deadline for filing an appeal was actually September 11, 2006, the deadline was erroneously noted on the defendant’s attorney’s calendar for September 15, 2006. The defendant’s attorney realized the error on September 12, 2006, and filed a notice of appeal and a motion with the trial court to file the untimely notice of appeal, seeking relief from judgment under Rule 60.02 of the Tennessee Rules of Civil Procedure. The trial court denied the relief requested, finding no extraordinary circumstances to justify it. The defendant now appeals. We dismiss the appeal, finding that the trial court did not have jurisdiction to consider the defendant’s Rule 60.02 motion once the defendant’s notice of appeal was filed.
Derek Davis v. Mark Luttrell, et al. - W2007-01077-COA-R3-CV View
Shelby County - The Shelby County Sheriff’s Department terminated the employment of deputy Derek Davis based on a random drug screening. The Civil Service Merit Board affirmed the Department’s decision. Mr. Davis appealed to the Chancery Court for Shelby County, which affirmed. Mr. Davis filed a timely notice of appeal to this Court, asserting the Board’s decision is not supported by substantial material evidence. We reverse.
Leigh Hembree, et vir vs. The Estate of Richard Styles, et al - E2006-02629-COA-R3-CV View
Cocke County - An action against “The Estate of Richard Styles” was dismissed by the Trial Court on grounds of the statute of limitations. We affirm.
Margaret Bargh Takeda vs. Sumihiro Takeda - E2006-02499-COA-R3-CV View
Hamilton County - In this divorce case, Husband appeals the classification of the marital residence as marital property, the division of the marital property, the restrictions on his parenting time with the parties’ two minor children, and the amount of his child support obligation. After careful review, we vacate the trial court’s judgment as to the division of the marital estate and remand for further findings of fact in that regard. We affirm the trial court’s judgment as to all other matters.
Sabrina Smith vs. City of Chattanooga, et al - E2006-00635-COA-R3-CV View
Hamilton County - The employee brought this hostile work environment sexual harassment claim against her supervisor and employer, alleging the defendants violated the Tennessee Human Rights Act (“THRA”). At the close of the employee’s proof in the jury trial, the trial court granted a directed verdict in favor of the supervisor and the employer. We vacate the trial court’s directed verdict in favor of the employer because from the proof presented at trial, reasonable minds could differ on the issue of whether the employer established the affirmative defense set forth by the United States Supreme Court in the Faragher/Ellerth cases and recently restated by the Tennessee Supreme Court in Allen v. McPhee. We affirm the trial court’s judgment that the supervisor was not individually liable under the THRA as an “aiding and abetting” accomplice because he did not encourage the employer to engage in employment-related discrimination or prevent the employer from taking corrective action.
Robert Jenkins & wife Sharon Jenkins v. Chase Brown, et al. -
M2005-02022-COA-R3-CV View
Wilson County - This appeal involves a dispute regarding the liability for the structural defects in a four-year-old house in a Mt. Juliet subdivision. Shortly after purchasing the house from its original owners, the property owners discovered that the house had been constructed on improperly compacted fill and other debris. When additional structural problems manifested themselves, the property owners filed suit in the Chancery Court for Wilson County seeking compensatory and punitive damages against the contractor who built the house and his wife, the original owners, the original owners’ real estate agent and broker, their own real estate agent and broker, and their home inspector. Following an eight-day trial, the jury determined that the contractor and the original owners had engaged in intentional and reckless misrepresentation by concealing the house’s structural problems. The jury also determined that both real estate agents and the developer of the subdivision were at fault. The jury awarded the property owners $58,720.80 in compensatory damages to be apportioned among the parties at fault. The jury also awarded the property owners $20,000 in punitive damages against one of the original owners and $50,000 in punitive damages against the contractor. The trial court reduced the punitive damage award against the original property owner to $14,000, and granted a judgment notwithstanding the verdict for the two real estate agents with regard to the property owners’ Tennessee Consumer Protection Act claims. On this appeal, the property owners take issue with the dismissal of their claims against the real estate agents and their brokers based on their use of an outdated and incomplete real property disclosure form. The contractor also takes issue with the judgments awarded against him for compensatory and punitive damages. We have determined that the trial court did not err by dismissing the property owners’ claims against the real estate agents and their brokers based on the use of the incomplete and outdated disclosure form. We have also concluded that the property owners presented insufficient evidence to establish their common-law fraud claim against the contractor who built the house. Accordingly, we reverse the portion of the judgment requiring the contractor to pay compensatory and punitive damages.
Cases posted the week of 12/10/2007
In Re: A. R. and J. R. - M2007-00618-COA-R3-CV View
Davidson County - Both parents appeal the termination of their parental rights on the ground of substantial non-compliance with the permanency plan and failure to remedy persistent conditions. The dispositive issue is whether the Department failed to make reasonable efforts to reunite the family. The reasonableness of the Department’s efforts to reunite a family is dependent upon whether the services rendered were adequate to meet the needs of the family. In this case, the Department knew both parents needed significant psychological services to afford them the reasonable opportunity to meet the goals of the permanency plans and to remedy persistent conditions. The Department knew this because the psychologist who performed the mental health assessment of each parent at the direction of the Department issued a report recommending that both parents receive specific and significant mental health counseling. The record fails to establish that the Department provided the essential psychological services, without which the other services provided by the Department could not meet the needs of either parent or the family. Accordingly, we vacate the order terminating the mother’s and father’s parental rights and remand for further proceedings.
Jonathan Ford et al vs. Steve Corbin et al - W2006-02616-COA-R9-CV View
Shelby County - This interlocutory appeal concerns the liability of a municipality. Pursuant to the municipality’s ordinances, a municipal inspector inspected a church building. The inspector sent a letter to the owners of the building notifying them that, due to the dilapidated condition of the building, they were in violation of a city ordinance. Over a year later, the building collapsed, killing four people, including three children, and injuring a fifth. The plaintiffs filed suit against the municipality for negligence based on the initial inspection and the municipality’s failure to take appropriate action after the initial inspection. Three separate lawsuits were consolidated into this action. The municipality filed a motion for summary judgment, arguing that it was immune from liability. The motion was denied. The municipality was then granted permission for this interlocutory appeal. On appeal, we affirm in part and reverse in part the trial court’s denial of summary judgment, holding that the defendant municipality may not be immune from liability for some claims under the facts presented in this case.
Helen Borner vs. Danny Autry - W2007-00731-COA-R9-CV View
Separate Concurring Opinion - View
Madison County - This is a Tenn. R. App. P. 9 interlocutory appeal from the Order of the trial court striking medical bills attached to Plaintiffs/Appellants’ complaint pursuant to T.C.A. § 24-5-113. The trial court specifically held that, because Plaintiffs/Appellants incurred total medical expenses in excess of the statutory maximum of $4,000.00, the Plaintiffs/Appellants were not entitled to the statutory presumption of reasonableness and necessity. Finding no errors of law, we affirm and remand.
Jerry Bundy vs. First Tennessee - W2006-02565-COA-R3-CV View
Shelby County - This is an age and sex discrimination case. The fifty-nine-year old male plaintiff worked for the defendant bank as a loan officer. In April 2003, he attempted to process a loan for a customer and did not disclose to the bank underwriting department documents he had received from the customer. When this was discovered, the plaintiff was placed under investigation. His employment was ultimately terminated for violating bank policy. The plaintiff filed this lawsuit, alleging age and sex discrimination. The bank filed a motion for summary judgment, arguing that the plaintiff could not establish a prima facie case of discrimination, or that the bank’s legitimate non-discriminatory reason for terminating him was pretextual. The trial court granted summary judgment in favor of the bank. The plaintiff now appeals. We affirm, concluding that the plaintiff submitted insufficient evidence to establish the fourth element of his prima facie case, that he was either replaced by an employee outside the protected class, or that he was treated less favorably than a similarly situated employee outside the protected class.
Gary Philpot v. Tennessee Health Management, Inc.,et al. - M2006-01278-COA-R3-CV View
Davidson County - In this wrongful death action, five defendants contest the trial court’s denial of their Motion to Compel Arbitration and Stay Proceedings. At issue on appeal is the validity of the arbitration agreement signed by the plaintiff on behalf of his mother, the deceased, on the day of her admission to the defendants’ nursing home. The trial court denied the defendants’ Motion to Compel Arbitration and Stay Proceedings finding “the agreement to arbitrate unenforceable as it is one of adhesion, oppressive, and unconscionable.” We have determined that, based on the evidence in the record, the arbitration agreement is enforceable. Therefore, we reverse the decision of the trial court and remand to the trial court for the entry of an order compelling arbitration.
David Lee Wright, as parent and next friend for Kaitlyn Lee Wright, minor v. Anita J. Wright & Ellen Collins, Administratrix of the Estate of Marjorie Copley - M2007-00378-COA-R3-CV View
Fentress County - This appeal concerns the amount of attorney’s fees awarded to counsel for a minor in a suit arising out of an accident which resulted in substantial injuries to the minor child. The only issue on appeal is the amount of attorney’s fees set by the trial court. For the reasons stated herein we reverse the trial court and remand for a hearing in which it shall determine anew the appropriate amount of attorney’s fees consistent with RPC 1.5(a) and the principles set forth in this opinion.
In Re: Estate of Martha Tanner - M2006-02640-COA-R3-CV View
Davidson County - The Tennessee Bureau of Tenncare filed a claim pursuant to Tennessee Code Annotated § 71-5-116(c) to recover medical benefits paid on behalf of Decedent from Decedent’s estate. The trial court dismissed the action as time-barred under Tennessee Code Annotated §§ 30-2-307(a)(1) and 310(b). The Bureau appeals, asserting its right to recover is not subject to the limitations period prescribed in Title 30. We affirm.
Cases posted the week of 12/03/2007
Ricky Holloway, et al. v. Cyril Evers, Taylor Golden and CTR Properties -
M2006-01644-COA-R3-CV View
Maury County - A contractor who was a partner in a subdivision development venture sold his interest to the other partners for $175,000. He subsequently filed a complaint against them alleging that they had deliberately taken advantage of his weak financial and physical condition to force him out the partnership. His complaint included claims for violation of fiduciary duty, duress and fraud. The trial court dismissed the contractor’s claim on summary judgment. We affirm.
In the Matter of: B.L.C., D.A.C., J.L.C. - M2007-01011-COA-R3-PT View
Sumner County - The issue presented in this case is whether the trial court erred in terminating the parental rights of the Mother and Father. After careful review, we reverse the trial court’s judgment terminating Mother’s parental rights on the ground of abandonment because (1) the Tennessee Department of Children’s Services (“DCS”) failed to prove that it provided Mother the statutorily required notice that must be given to a parent as a prerequisite to a proceeding to terminate on the ground of abandonment; (2) the evidence preponderates against the conclusion that DCS proved by clear and convincing evidence that Mother willfully abandoned her children; and (3) that DCS was not relieved of its statutory duty to provide reasonable efforts to reunify Mother and children until a court of competent jurisdiction entered an order finding that Mother had abandoned the children, and not before such finding was made. We affirm the trial court’s ruling terminating Father’s parental rights because he took the position throughout the entire trial that he was not contesting his termination, and only for the first time on appeal raises the issue of whether the trial court erred in terminating his parental rights.
Charlie Raines, as Administrator of the Estate of Zelma Raines, deceased v. National Health Corporation d/b/a NHC Healthcare, et al. - M2006-01280-COA-R3-CV VIew
Rutherford County - This case was filed as a nursing home neglect case. The issue before the Court relates to the enforceability of an arbitration agreement signed during the nursing home admissions process by the holder of a durable power of attorney. The trial court denied the appellants’ motion to compel arbitration. It held that the arbitration agreement was beyond the authority of the attorney-in-fact, and, therefore, it did not reach questions related to the capacity of the decedent to execute the durable power of attorney; nor did it address the unconscionability of the agreement. We reverse the trial court as to its ruling on the authority of the attorney-in-fact and remand for a hearing and decision on the other issues not previously reached below.
State of TN vs. Billy Couch M.D.,a/k/a Dr. B.L. Couch, etal - W2007-01059-COA-R3-CV View
Gibson County - Defendant doctor appeals an award of summary judgment to the State in this action brought pursuant to the Tennessee Consumer Protection Act (TCPA) in connection with the sale and administration of flu vaccine. The trial court found the defendant doctor guilty of two hundred seventy (270) violations of the TCPA for vaccinating fifty-four (54) patients with serum manufactured for the previous flu season while representing it would protect them in the upcoming flu season; awarded restitution to the patients, imposed a civil penalty of $50 per violation, and awarded $10,500 in attorney’s fees and costs for investigation; and issued permanent injunction prohibiting doctor from selling or administering a flu vaccine manufactured for a previous flu season. On appeal, defendant doctor contends he established that two material facts were in dispute. We affirm.
State Farm Fire & Casualty Co. vs. Darrell Sparks, et al - W2006-01036-COA-R3-CV View
Shelby County - This appeal arises out of an action for declaratory judgment brought by an insurer. The insurer asked the court to determine whether its homeowners’ and personal liability umbrella policies afforded coverage and required defense of a tort action filed against its insured. The tort action involved an accident that occurred at the site of an oil well, which was owned and operated by a partnership in which the insured parties were partners. The insureds’ insurance policies excluded coverage for losses arising out of their “business pursuits.” The trial court granted partial summary judgment to the insureds and ordered the insurer to defend and indemnify the insureds in the underlying tort action. For the following reasons, we reverse.
Maxine Jones and Juanita Allen v. Montclair Hotels Tennessee LLC d/b/a/ Ramada Inn and Tennessee Oakmont, LLC - M2006-01767-COA-R3-CV View
Davidson County - Plaintiffs sustained personal injuries when an elevator in Defendants’ hotel fell approximately six stories on August 4, 2003. Plaintiffs filed suit exactly one year later on August 4, 2004. Plaintiffs did not properly identify the hotel’s owner/operator as a party-defendant in their original complaint and thereafter filed three amended complaints. The elevator servicing company was named as a defendant in the original complaint and was later dismissed on summary judgment. Following the trial court’s grant of summary judgment in favor of the elevator servicing company, Plaintiffs finally identified the proper defendant hotel owners in their third amended complaint filed on April 17, 2006. The trial court dismissed the complaint on the determination that it was time-barred by the applicable one year statute of limitations. Plaintiffs appeal and claim the trial court erred in dismissing their cause of action against the hotel because their third amended complaint should relate back to the date of the original pleading thus placing it within the statute of limitations pursuant to Rule 15 of the Tennessee Rules of Civil Procedure. Additionally, Plaintiffs argue the defendant-hotel’s failure to register with the Secretary of State should impart to it constructive notice of the action. Finding no error below, we affirm the judgment of the trial court.
The Adoption Place, Inc. v. John Doe - M2007-01214-COA-R3-PT View
Rutherford County - This is an appeal of the termination of the parental rights of an unknown father. The appeal challenges the service by publication on the unknown father, the protective order that effectively prohibited the attorney for the unknown father from conducting discovery regarding the identity of the unknown father, and the findings by clear and convincing evidence that the unknown father had abandoned the child and that it was in the best interest of the child to terminate the unknown father’s parental rights. We reverse the actions of the trial court and remand for further proceedings consistent with this opinion.
Ross Products Division Abbott Laboratories v. State of Tennessee -
M2006-01113-COA-R3-CV View
A manufacturer of infant formula entered into a contract with the State of Tennessee to furnish large quantities of its products to retailers for the federally-funded WIC program. The contract included a cash rebate which the manufacturer agreed to pay the State for each can furnished, to offset the cost of administering the program. After operating under the contract for four years, the manufacturer unilaterally decided to reduce the size of the cans it was providing, and it asked the state to reduce the rebate proportionally. The State refused, citing a provision in the contract that precluded rebate reductions. The manufacturer then filed an administrative claim, asking for a $1.2 million refund of its alleged overpayment of rebates. The Claims Commissioner granted Summary Judgment to the State. We affirm the Commissioner’s judgment.
Paul Leland v. Louisville Ladder Group LLC, et al. - M2006-02109-COA-R3-CV View
Rutherford County - The trial court summarily dismissed this malicious prosecution action arising out of criminal charges prosecuted by the defendants that the plaintiff had stolen assets while an employee of one of the defendants. We conclude the defendants did not negate one of the essential elements of plaintiff’s claim, that element being that the defendants did not have probable cause to believe, at the time they prosecuted the criminal case, that the plaintiff had stolen the ladders. We have also concluded that the trial court erroneously placed the burden of proof upon the plaintiff to prove that the defendants lacked probable cause when they prosecuted the case against him. Accordingly, we reverse.
Tracy Luna, Individually and as the surviving spouse of James D. Luna, deceased v. St. Thomas Hospital - M2006-01728-COA-R3-CV View
Davidson County - In this medical malpractice action, the trial court awarded summary judgment to defendant hospital on the basis of the statute of limitations. It later denied plaintiff’s motion to alter or amend the judgment. Finding that the plaintiff established the existence of a disputed material fact regarding when she should have discovered her cause of action against the hospital, we reverse and remand the matter for further proceedings consistent with this opinion.
Arcenta V. Harrison v. Quenton White, et al - M2006-01386-COA-R3-CV View
Davidson County - The pro se Appellant, who was an inmate in the custody of the Tennessee Department of Correction, appeals the trial court’s dismissal, on the ground of mootness, of his request for medical records. Finding that the Appellees herein did provide Appellant with all medical records held by Appellees, we affirm the order of the trial court.
Patricia "Kay" Provonsha vs. Students Taking A Right Stand, Inc. (STARS) -
E2007-00469-COA-R3-CV View
Hamilton County - The gravamen of this action is an alleged retaliatory discharge. Plaintiff charged defendant with a common law violation, as well as a violation of the Tennessee Public Protection Act. Defendant moved for summary judgment which the Trial Court granted. On appeal, we affirm.
Cases posted the week of 11/26/2007
Richard Michael Eaves vs. Judy J. (Leistner) Eaves - E2006-02185-COA-R3-CV View
Hamilton County - The trial court’s judgment granted a divorce to Judy J. (Leistner) Eaves (“Wife”) and Michael Eaves (“Husband”). Wife appeals. She disputes the trial court’s rulings with respect to allocation of marital debt, alimony, child support, and their children’s tax exemptions. On appeal, she also requests a change in the residential parenting schedule and a larger award of attorney’s fees. We hold that Wife fails to demonstrate that the trial court either abused its discretion or committed an error of law with respect to any of these issues. Accordingly, we affirm.
In Re Estate of Pauline Hill - E2006-01947-COA-R3-CV View
Claiborne County - This is an appeal of a will contest. Pauline Hill (“the Deceased”) died in 2001 at the age of 72. She was predeceased in death by her husband, Maynard. At an earlier time, and following the death of her husband, a conservatorship was established for Mrs. Hill. This occurred in 1982. Her brothers, Willard, Lloyd, and Russell Cosby, were designated as her conservators. On April 24, 1992, the Deceased executed what purports to be a will. Later in the same year, her original conservators were removed and her guardianship was vested in Marty Cosby. After the Deceased died in 2001, her brother, Russell, and a nephew, Larry Cosby (“the Contestant”), filed papers seeking appointment as the administrators of her estate. An order of administration was entered in the trial court on or about August 21, 2001. On October 12, 2001, a niece of the Deceased, Glenda Elliott (“the Proponent”), filed a petition to probate in solemn form the Deceased’s purported 1992 will. The will named the Proponent as executrix. The Proponent further requested that the order of administration previously issued at the request of the Cosbys be revoked. In their answer to the petition for probate in solemn form, the Cosbys denied that the 1992 will was valid and asserted various affirmative defenses, which put at issue the Deceased’s competency and whether the will was properly witnessed. On August 13, 2004, the Contestant filed a motion for summary judgment, suggesting that the appointments of guardians in 1982 and 1992 established that the Deceased was incompetent at the time the will was executed. He further asserted that the affidavit of Melba R. Webb, a witness to the will, showed that the will was void. He contended that Ms. Webb did not realize she was witnessing a will. On December 14, 2005, after hearing argument, the trial judge determined that the issues raised made out a will contest. The court denied the Contestant’s motion for summary judgment. A jury subsequently found the will to be valid. The will was admitted to probate. The Contestant appeals. We affirm.
Theresa Lynn Peters vs. Orville Leon Peters - E2006-02585-COA-R3-CV View
Sullivan County - Theresa Lynn Peters (“Wife”) filed a complaint seeking a divorce from Orville Leon Peters (“Husband”). Following the trial, the Trial Court divided the marital property and awarded Wife alimony in futuro of $2,200 per month. Husband appeals challenging the Trial Court's division of the marital property as well as the award of alimony in futuro. Because Husband failed to file either a transcript of the proceedings or a Tenn. R. App. P. 24(c) statement of the evidence, we affirm the judgment of the Trial Court.
Dick Wager vs Life Care Centers of America, Inc. - E2006-01054-COA-R3-CV View
Bradley County - This case focuses on the aftermath of the eight-month tenure of Dick Wager (“President”) as president of Life Care Centers of America, Inc. (“Company”). President sued Company for breach of contract, claiming that he is entitled to an unpaid $500,000 severance that was payable upon his “leaving employment . . . for any reason.” President also claims he is entitled to two equity options worth approximately $1,500,000 that were scheduled to vest within six months of his start date at Company. Company says it was justified in refusing to give President the severance and the equity options after he was forced to resign. With regard to the severance, Company argues that the “for any reason” language in the parties’ contract is ambiguous and was not intended to apply to a situation like this one, in which, according to Company, President breached his contract by maintaining improper relationships with outside vendors. President argues that the relationships in question were not improper and that, in any event, Company had advance notice of them. Each party asserts that the other acted in bad faith. The trial court found that neither party acted in bad faith, and awarded President the $500,000 severance on the basis of the “for any reason” language, but declined to award him the equity options. Company appeals, arguing that President is entitled to nothing; President asserts that he is entitled to both the severance and the equity positions. We affirm the trial court’s ruling in both respects.
In Re J.C.D., J.D.D., J.A.M., E.O.M., T.D.M., & Q.O.M. - E2007-01266-COA-R3-PT View
Knox County - Upon petition of DCS, the juvenile court terminated Mother’s parental rights to her six children upon a determination that Mother had failed to substantially comply with requirements of her permanency plans, that conditions that led to the children’s removal from the home still persisted and that termination was in the best interest of the children. On appeal, Mother argues that there was not clear and convincing evidence of statutory grounds for termination or that termination was in the children’s best interest. Mother also argues that DCS did not make reasonable efforts to reunite Mother and the children, that the juvenile court erred in finding statutory grounds for terminating the Mother’s parental rights to T.D.M. and Q.O.M., who were opposed to termination, before appointing a preference guardian to represent them, and that termination of parental rights to Q.O.M. was prohibited absent his consent because he was over fourteen years of age at the time of termination. We hold that the evidence does not preponderate against the juvenile court’s finding that there was clear and convincing evidence of at least one statutory ground for termination of Mother’s parental rights, that termination of Mother’s parental rights was in the children’s best interest, and that DCS made reasonable efforts to reunite Mother and the children. We further hold that the juvenile court was not required to appoint a preference guardian ad litem before trying the issue of whether there were statutory grounds for the termination of parental rights as to T.D.M. and Q.O.M. despite their opposition to termination and that the consent of Q.O.M. was not a prerequisite to termination of Mother’s parental rights despite the fact that he was over fourteen years of age. Accordingly, we affirm the judgment of the juvenile court.
Consolidated Waste Systems, LLC v. Metropolitan Government of Nashville and Davidson County - M2006-01345-COA-R3-CV View
Davidson County - The developer of a “construction and demolition” landfill appeals the denial of its application for a permit to construct the landfill. When the developer first applied for a permit in 1999 to develop the landfill, the Metropolitan Government denied the application based upon two zoning ordinances. In the lawsuit that ensued, the trial court found the ordinances unconstitutional. In the appeal that followed, this Court affirmed the trial court and issued a stay of 150 days to afford the Metropolitan Government the opportunity to cure the constitutional infirmities. The Metropolitan Government timely amended one of the ordinances in 2003, but not the other ordinance, believing the amendment to that ordinance cured the constitutional infirmities identified in the first appeal. Following the post-remand amendments to the ordinance, the developer renewed its request for a permit to construct the landfill. The Metropolitan Government again denied the permit, this time stating the landfill would violate Section 17.16.110(A)(2) of the Metro Code because the property was zoned in a district that permitted construction and demolition landfills with “conditions” and the proposed landfill did not meet the requisite conditions for two reasons. The landfill was within 100 feet of a property line for a residential area, and it was within 2000 feet of a park. Believing the Metropolitan Government had not cured the constitutional infirmities, the developer filed a motion to compel the Metropolitan Government to issue the twice-requested permit. After analyzing the two relevant ordinances and this court’s opinion in the first appeal, the trial court concluded that the Metropolitan Government had cured all constitutional infirmities. It also concluded that the proposed landfill did not meet the requisite conditions for the reasons stated by the Metropolitan Government, and thus, affirmed the denial of the permit. We have determined, as the trial court did, that the Metropolitan Government cured the constitutional infirmities and find no error with the determination that the plaintiff did not meet the requisite conditions for a construction and demolition landfill. Accordingly, we affirm.
Julia Leigh Tomes v. Timothy Lee Tomes - M2006-01799-COA-R3-CV View
Davidson County - Husband appeals the trial court’s interpretation of provisions in a marital dissolution agreement governing distribution of home sale proceeds and payment of debt. Finding the agreement to be ambiguous, the trial court heard evidence on the parties’ intent and found Husband was responsible for the second mortgage. Agreeing that the agreement is ambiguous, based on evidence provided at the hearing, we find the agreement contemplated that Husband was to pay the second mortgage. Consequently, the trial court is affirmed.
State of Tennessee, Department of Children's Services vs. C.W. and J.C.W., In the Matter ofL C.W.(DOB 04/21/99) and J.W. (DOB 02/22/02) - E2007-00561-COA-R3-PT View
Campbell County - The Trial Court terminated the parental rights of the parents of the two minor children. On appeal, we affirm.
Harold Dennis Hardaway & Sonya Hardaway vs. Hamilton County, Tennessee Board of Education, et al - E2006-01977-COA-R3-CV View
Hamilton County - In this action for damages allegedly due to water runoff from construction for a new school, the Trial Court granted defendants summary judgment. On appeal, we conclude there are disputed issues of material fact, and remand and vacate the summary judgment.
James O. Overton et al vs. Terry l. Davis et al - E2006-01879-COA-R3-CV View
Anderson County - Landowners brought action against adjacent neighbors to establish boundary line. Following a bench trial, the court held that each side is entitled to approximately half of the disputed area. Landowners appeal from the trial court’s resolution of the boundary dispute. The neighbors agree with landowners’ assertion that the evidence does not support the line found by the trial court. The judgment of the trial court is vacated. This case is remanded for further proceedings.
Harry McLemore, Jr. v. State of Tennessee, Charles Traughber -
M2007-00503-COA-R3-CV View
Davidson County - An inmate filed a petition for a common law writ of certiorari, alleging that the Board of Paroles acted arbitrarily and illegally in denying parole. The chancery court dismissed the petition for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. The inmate appealed. We affirm.
Linda L. Weber v. Donald D. Weber, Jr. -
M2006-02311-COA-R3-CV View
Williamson County - In this dispute over child support owing by the father, the Trial Court ordered child support ended on the grounds the child turned 18 and his high school class had graduated, but ordered payments of back child support arrearage. On appeal, we affirm.
Bessie L. White, et al. v. Premier Medical Group, PC and Scott William McLain, MD -
M2006-01196-COA-R3-CV View
Montgomery County - In this medical malpractice action against a treating physician, his medical group, and several hospital entities, the plaintiffs contend the trial court erred by including in the jury instructions the defense of superseding cause requested by the treating physician and his medical group. The plaintiffs argue the evidence was insufficient to justify the instruction. It is proper to charge the law upon an issue of fact within the scope of the pleadings upon which there is material evidence sufficient to sustain a verdict. The record contains material evidence regarding each of the essential elements of the defense of superseding cause sufficient to sustain a verdict of superseding cause; therefore, an instruction as to superseding cause was appropriate.
Bruce Wood, et al. v. Metropolitan Nashville Board of Health, et al. -
M2006-01599-COA-R3-CV View
Davidson County - This is an appeal challenging the issuance of several permits to North American Galvanizing Company by the Air Pollution Division of the Metropolitan Department of Health. Appellants base their challenge on the failure of the Department to consider the location of the company as well as noise and exhaust fumes arising from truck traffic traveling through a residential neighborhood to and from the company. They also challenge the representation of both the Department and the Board of Health by Metropolitan Department of Law attorneys. The Chancellor ruled against the appellants. We affirm.
Heather Hill, et al. v. Andrea Giddens, M.D., et al. - W2006-02496-COA-R3-CV View
Shelby County - Patient filed a complaint against Doctors, OB/GYN Group, and Hospital (together “Defendants”) alleging medical malpractice for failing to obtain informed consent and failing to properly care for Patient during and after her hospitalization. The trial court granted summary judgment in favor of the defendants on the grounds that Patient failed to provide a competent medical expert as required by T.C.A. § 29-25-115 (Supp. 2006). Patient appeals. We affirm.
Thomas D. Dossett vs. City of Kingsport, Tennessee - E2007-00010-COA-R3-CV View
Sullivan County - Thomas D. Dossett (“Plaintiff”) filed suit after the Kingsport Board of Mayor and Aldermen (the “Board”) showed an interest in selling city-owned real estate to private investors. Members of the Board met privately on two occasions with a potential buyer, after which the sale was considered at five public meetings and then approved by the Board. In his lawsuit, Plaintiff alleged that the ordinance by which the city disposes of surplus property is illegal; that the city violated the Open Meetings Act (the “Act”); and that a constructive trust should be imposed on the property for the use and benefit of the citizens of Kingsport. In a series of orders, the Trial Court dismissed the constructive trust issue, granted summary judgment to Defendant on the Open Meetings Act claim, and dismissed Plaintiff’s challenge to the surplus property ordinance for Plaintiff’s lack of standing. Plaintiff appeals the Trial Court’s rulings on the standing issue and the Open Meetings Act claim. Plaintiff failed to request an in limine hearing or to make an offer of proof regarding his standing to challenge the ordinance, and we, therefore, find no reversible error as to this issue. We also hold that any alleged violations of the Open Meetings Act were cured by the Board’s full and substantial consideration of the sale at five public meetings after the private meetings took place. We affirm.
Moore Family Properties, LLC, et al. v. Pull-A-Part of Tennessee, LLC, et al. -
W2007-00457-COA-R3-CV View
Shelby County - This appeal involves a review of actions taken at a meeting of the Memphis City Council. When the council members voted on a resolution, for unknown reasons, the electronic voting machine did not record an entry for one of the council members. This resulted in six votes being cast in favor of the measure and six votes against it. The omitted council member orally expressed his intention to vote in favor of the resolution before the Chairman announced the result of the vote. The Chairman then called for the electronic voting machine to be cleared so that all members could re-enter their votes. After the second vote, the Chairman declared that the resolution passed by a vote of seven to six. The appellants filed a petition for a writ of certiorari in the chancery court, alleging that the first vote was final and that the City Council acted illegally by taking a second vote. Upon review of the record of the proceedings, the trial court granted summary judgment to the City of Memphis and the Memphis City Council. We affirm.
Heatherly Awad v. Selma Curtis - M2005-00094-COA-R3-CV View
Montgomery County - This is a breach of contract case. The parties executed a contract for the sale of a beauty salon whereby, according to one of the provisions, Seller agreed to work for Buyer for a specific amount of time. Seller quit before the specified period expired. Both parties sued for breach of contract. The trial court awarded damages to Buyer in the amount of $18,000.00. Seller appeals, asserting that the provision at issue was too indefinite to be enforceable and challenging the damages awarded Buyer. The judgment of the trial court is affirmed.
Lawrence Levine & Carolyn Levine, et al. v. Ron March, et al. -
M2006-00297-COA-R3-CV View
Davidson County - This appeal involves a dispute over the personal property of a wife who was murdered by her husband. Following their appointment as conservators of her property, the wife’s parents filed suit in the Circuit Court for Davidson County against their son-in-law and certain members of his family seeking to recover their daughter’s personal property. Following a three-day trial, the jury returned a $222,449.10 verdict for the parents against the husband’s brother, sister, and brother-in-law. On this appeal, the husband’s family members take issue with the denial of their motion for directed verdict based on the statute of limitations, the failure to join the original conservator as a necessary party, the admissibility of certain evidence, and the jury instructions. We have determined that the trial court did not commit error during the trial and, therefore, affirm the judgment.
William Edward Hargrove v. Merriellen Hargrove a/k/a Merriellen Warstler -
W2007-00538-COA-R3-CV View
Benton County - This is a post-divorce case involving disputes over obligations in the Marital Dissolution Agreement and modification of the visitation schedule contained in the permanent parenting plan. Husband filed for divorce from Wife, and on August 25, 1998, the chancery court entered a final decree of divorce that incorporated the Marital Dissolution Agreement. The permanent parenting plan was filed on February 12, 2004. Concerning Husband and Wife’s minor son, born January 7, 1990, the residential schedule in the permanent parenting plan provided that Husband would be the primary residential parent and Wife would be responsible for the child every other weekend and during certain holidays. As to property division, the Marital Dissolution Agreement required Husband to transfer one-half of his pension plan to Wife. Concerning the marital home, Wife agreed to execute a quitclaim deed to Husband conveying her interest to Husband simultaneously with Husband paying her $15,000. After a contempt hearing, the court modified the parenting schedule; found that Wife was entitled to one-half of Husband’s pension, but not one-half of Husband’s annuity; and found that Husband had satisfied the $15,000 obligation. Wife appeals pro se, arguing that the modification of the residential schedule found in the parenting plan is void because the court did not follow Tenn. Code Ann. § 36-6-405(a). Wife also argues that the parties’ intent was that she was to receive half the annuity along with half the pension. Finally, Wife contends that Husband did not meet his burden of proof to establish the defense of accord and satisfaction. We affirm.
In Re: Adoption of M.P.J., dob 1/29/02 - W2007-00379-COA-R3-PT View
Gibson County - This is a case involving the termination of a father’s parental rights. The Department of Children’s Services instituted a dependent and neglect proceeding and the court granted a protective order removing the minor child from the mother’s home. At the time, the father’s whereabouts were unknown. The child, almost seven months old, was placed in the temporary custody of her great-aunt. The father subsequently began serving a 56 month sentence in federal prison. When the child was almost five years old, the great-aunt petitioned the court for the termination of both the mother and the father’s parental rights and for the adoption of the child. The mother joined in the petition. After a termination hearing, the court announced that the father had abandoned the child, that his rights were terminated, and granted the great-aunt’s petition for adoption. The court first entered an order of adoption, but had yet to enter the order terminating the father’s parental rights. The court then issued an order of termination, but failed to include any findings of fact. Next, the court issued an amended order of termination with specific findings of fact, nunc pro tunc to the termination hearing date. Father appeals, arguing (1) that the trial court failed to make findings of fact; (2) that there is not clear and convincing proof of abandonment; (3) that the Department of Children’s Services did not afford him a reasonable opportunity to reunite with the child; and (4) that substantial harm to the child must be proven before a court may constitutionally terminate a parent’s rights. We affirm.
Highwoods Properties, Inc., et al. v. City of Memphis - W2007-00454-COA-R3-CV View
Shelby County - This appeal involves the second case filed by the appellants to challenge an annexation ordinance. Previously, the appellants filed a quo warranto action seeking to have the annexation ordinance declared null and void on various grounds. Other landowners had previously filed quo warranto actions that were consolidated and still pending, and the appellants sought to consolidate their action with the others. The trial court held that the appellants’ quo warranto action was not timely filed, and accordingly dismissed it. On appeal, this Court affirmed. The consolidated quo warranto proceedings concluded with a consent order approving the reasonableness of the annexation ordinance, but providing that the annexation would take place in two phases. The appellants then filed the present action seeking a declaration that the annexation accomplished through the consent order was procedurally invalid and unconstitutional. The trial court dismissed the appellants’ complaint for failure to state a claim upon which relief could be granted. We affirm.
Serena Rucker v. St. Thomas Hospital - M2007-00716-COA-R3-CV View
Davidson County - This is a common-law retaliatory discharge case. Plaintiff/Appellant alleged that she was wrongfully discharged from her employment with Defendant/Appellee. Defendant/Appellee moved for summary judgment, which the trial court granted. Plaintiff/Appellant appeals. We affirm.
Jerry Carmack, Kay Carmack Brooks, Brenda Carmack Thomas v. Louis W. Oliver, III -
M2006-01873-COA-R3-CV View
Sumner County - Landowners who hired an attorney to defend their property rights brought suit for legal malpractice against that attorney related to his representation in the litigation over disputed property. The defendant attorney filed a motion for summary judgment, claiming that the one-year statute of limitations for malpractice claims had passed before the landowners filed their suit against him. The trial court granted the attorney’s motion. We affirm the grant of summary judgment to the defendant attorney as to any allegations of delay in seeking an injunction against a trespassing neighbor, since the landowners had complained about the delay to several official bodies over two and a half years before they filed their complaint against their attorney. However, we reverse the trial court as to any alleged acts of legal malpractice that occurred within one year of the filing of the plaintiffs’ complaint.
Patsy L. Aldridge v. Pam Aldridge, et al. - In Re: Conservatorship of Bill M. Aldridge -
W2006-02334-COA-R3-CV View
Shelby County - This is a case involving a petition for appointment of conservator and a request for attorney’s fees by the non-petitioning spouse of the ward. The husband and wife were married, but lived apart. The husband lived with his daughter from a previous marriage. Unknown by the husband’s children, he continued to see and financially support his estranged wife. The husband suffered from bipolar disorder requiring several hospitalizations. The husband, during a manic period, emptied his 401K account and purchased several vehicles and properties. The husband’s daughter petitioned the court for appointment of a conservatorship for her father. The court found that the husband was disabled, and appointed the daughter as the conservator over his person and a third-party attorney as the conservator over his finances. The wife was represented by counsel during the proceedings. The court ordered the conservator to pay the wife spousal support in the amount of $2,000 a month out of the husband’s $150,000 estate. The wife then petitioned the court for an award of her attorney’s fees, which the probate court denied. Wife appeals, arguing that the lower court has the statutory authority pursuant to Tenn. Code Ann. § 34-3-109 to include in the award of financial support her attorney’s fees. We affirm.
Evelyn Nadine Briceno v. Jewel Faye Briceno
and the Estate of Nicholas Briceno - M2006-01927-COA-R3-CV View
Maury County - In this appeal from
a consolidated action, plaintiff ex-wife seeks to
enforce two provisions of a divorce decree. She filed
suit to impose a constructive trust on life insurance
proceeds held by her deceased ex-husband’s surviving
spouse and to recover alimony arrearage from his estate.
The trial court applied the doctrine of laches to
limit the alimony award and imposed a constructive
trust upon the insurance proceeds only for that limited
amount. We reverse and remand.
Cases posted the week of 11/19/2007
Gordon C. Collins v. Barry L. Arnold, et
al. - M2004-02513-COA-R3-CV View
(Concur) - View
Davidson County - The plaintiff was severely
injured when the automobile he was driving was struck by a car
driven by an impaired driver who was killed in the collision.
The plaintiff’s
suit named as defendants the estate of the deceased driver, the
nightclub from which the driver departed immediately before the
accident, and the company which provided security services to
the bar. The jury declined to find the nightclub liable for serving
alcoholic beverages, thereby making the only available basis for
liability negligence in controlling the conduct of the deceased
driver so as to prevent harm to others. The jury heard evidence
that employees of the club and the security company had made efforts,
albeit unsuccessful, to prevent the driver from leaving the premises
in an intoxicated state. The jury found the plaintiff’s
damages resulted from negligence and amounted to over $1,162,000.
They allocated 30% of the fault to the deceased driver, 30% to
the security company, and 40% to the club’s owner. The jury
also awarded punitive damages of $1.5 million against the club’s
owner and $500,000 against the security company. The club owner
appealed. Because the jury was not instructed as to the conditions
for liability under an assumed, rather than imposed, duty of care
as established in Section 324A of the Restatement of Torts, we
must reverse the verdict and judgment thereon. For separate and
independent reasons, we reverse the award of punitive damages,
because the conduct of the bar’s personnel in attempting
to prevent its adult customer from driving while impaired did
not reach the level of recklessness necessary to sustain a punitive
award. Additionally, we find no error in evidentiary rulings or
other procedures in the trial court that justify reversal.
Trent Watrous, Individually and as the surviving
spouse and next of kin of Valerie Watrous v. Jack L. Johnson,
et al. - W2007-00814-COA-R3-CV View
Chester County - The trial court awarded summary
judgment in favor of defendants on plaintiff’s claim of
negligent entrustment. We reverse and remand for further proceedings.
Robert Crawford vs. J. Avery Bryan Funeral
Home, Inc. -
E2006-00987-COA-R3-CV View
(Concur/Dissent) - View
Hamilton County - This appeal involves one of numerous civil
lawsuits filed against T. Ray Brent Marsh and his former business, Tri-State
Crematory, Inc., and others. The plaintiffs in this case are the parents and
siblings of Robert H. Crawford, Jr., whose body was sent to the Tri-State Crematory
for cremation. The body, however, was not cremated and to this day the plaintiffs
do not know what happened to their loved ones’ body. The trial court dismissed
the lawsuit after finding that the decedent’s surviving spouse was the
only person with standing to bring the various tort claims asserted by the plaintiffs.
The decedent’s sister,
Teri Crawford, appeals that determination. We affirm.
Rondal Akers vs. Buckner- Rush Enterprises Inc. -
E2006-01513-COA-R3-CV View
(Concur/Dissent) - View
Bradley County - This is an appeal from three consolidated
lawsuits filed against T. Ray Brent Marsh, Marsh’s former business,
Tri-State Crematory, and Buckner-Rush Enterprises, Inc. The plaintiffs
are relatives and a girlfriend of three deceased individuals whose bodies
were sent by Buckner-Rush Funeral Home to Tri-State Crematory for cremation.
The bodies were not cremated and either were dumped or buried by
Marsh on the Tri-State premises. The trial court dismissed all three
lawsuits after holding that the plaintiffs did not have standing
to bring any of the tort, contract, or statutory claims at issue.
We affirm in part, vacate in part, and remand for further proceedings
consistent with this opinion.
Robert Francis Hibbard, Jr. vs. Receivables
Management Bureau, Inc., d/b/a R.M.B. - E2007-00152-COA-R3-CV View
Knox County - The trial court dismissed
plaintiff’s malicious prosecution
action. On appeal, we affirm.
Helen C. Swanson vs. Knox County, Tennessee -
E2007-00871-COA-R3-CV View
Knox County - This case presents the issue of the applicability
of Tenn. Code Ann. § 8-8-302 to a suit against a county government
based on the failure of one or more of its deputy sheriffs to perform
an administrative task. Ms. Swanson applied for a job with a hospital,
and at the request of the hospital, the county sheriff’s
department issued a criminal background report on Ms. Swanson
which contained some erroneous information. The sheriff’s
department corrected and reissued the report but