Estate of Carolyn A. Montgomery v. Daniel Kueter, M.D.
We granted the application of Daniel Kueter, M.D. (“Defendant”) for a Tenn. R. App. P. 9 Interlocutory Appeal on the issue of whether the Trial Court erred in reinstating this case to its active docket after it had been dismissed without prejudice over a year earlier. We find and hold that although plaintiff was not entitled to relief under Tenn. R. Civ. P. 60.02, the Trial Court did not err when it granted Plaintiff’s motion to enter an agreed order nunc pro tunc reinstating this case. We, therefore, affirm the Trial Court’s order. |
Hamilton | Court of Appeals | |
Lesa C. Williams, et al. v. Renard A. Hirsch, Sr.
This application for an interlocutory appeal concerns a client’s standing to seek a declaratory judgment regarding the amount of fees to be paid to one of the three attorneys who represented her in a personal injury suit. The trial court dismissed the client’s complaint for lack of standing but granted the client permission to appeal pursuant to Tenn. R. App. P. 9. We concur with the trial court that an interlocutory appeal will prevent needless, expensive and protracted litigation. We also conclude that the client has a real interest in the litigation, and we thus reverse the trial court’s order dismissing the client’s complaint. |
Davidson | Court of Appeals | |
Erda M. Gonzalez v. Neft Ali Gonzalez
Mr. Gonzalez filed a petition to alter his final divorce decree, alleging that the decree violates federal law by allowing the wife to receive more than 50% of his military retirement. The trial court denied relief. Mr. Gonzalez appealed. We affirm, holding that federal law does not limit Tennessee trial courts to awarding a maximum of 50% of a former service member’s retirement to the ex-spouse. |
Montgomery | Court of Appeals | |
Clayton Ward v. Illinois Central Railroad Company
Plaintiff, a railroad employee, filed this lawsuit pursuant to the Federal Employers’ Liability Act, alleging that his left ankle injury was caused by his working conditions. The railroad filed a motion for summary judgment based upon the three-year statute of limitations. The trial court denied the motion for summary judgment but subsequently granted the railroad’s motion for permission to seek an interlocutory appeal. We granted the railroad’s application for an interlocutory appeal and now affirm the trial court’s decision to deny the motion for summary judgment. |
Shelby | Court of Appeals | |
Floyd E. Bell v. Eller Media Company, a Tennessee Corporation
Pursuant to a lease agreement, Defendant was allowed to place a billboard on Plaintiff’s building. After the billboard allegedly caused damage to Plaintiff’s building, Plaintiff notified Defendant. Defendant then sent a letter to Plaintiff terminating the lease, but Plaintiff claims Defendant later agreed to remove the billboard and make repairs to his building. When such repair and complete removal were not made, Plaintiff filed suit alleging breach of contract and promissory estoppel. Defendant moved for summary judgment, which the trial court granted, and we affirm. |
Shelby | Court of Appeals | |
Judith Anne Shaw v. Jason Patrick Shaw
In this divorce case, we granted the request of Jason Patrick Shaw (“Father”) for a Tenn. R. App. P. 10 extraordinary appeal on three issues: (1) whether the Trial Court erred when it refused to grant his request for access to his older daughter’s counseling records with a licensed clinical social worker; (2) whether the Trial Court properly prohibited Father from taking this daughter’s deposition, and (3) whether the Trial Court erred when it refused Father visitation with any of the parties’ three children. As to the first issue, we remand this case to the Trial Court for a determination of whether furnishing the social worker’s records would be against the daughter’s best interest, as discussed more fully in this Opinion. We vacate the Trial Court’s refusal to allow Father to depose the daughter. Finally, we vacate the Trial Court’s refusal to allow Father any meaningful visitation and remand for the Trial Court to determine an appropriate supervised visitation schedule. |
Hamilton | Court of Appeals | |
Mark W. Urlaub, as Next of Kin and Executor of the Estate of Bertha Worley Urlaub v. Select Specialty Hospital-Memphis, Inc., et al.
Plaintiff filed this medical battery suit on behalf of his deceased mother and named as defendants the nephrologist who ordered an allegedly unauthorized hemodialysis procedure, another treating physician, and the hospital where she was treated. The trial court granted summary judgment to the treating physician who did not order the procedure and to the hospital. Plaintiff appeals. We find that both of these defendants were entitled to summary judgment and therefore affirm the trial court’s decision. |
Shelby | Court of Appeals | |
Dan Kenneth Kelly v. Sonya Frances Kelly
In this post-divorce dispute, the trial court denied the petitions of both parents to modify the parenting time but granted the mother’s petition to modify child support. We affirm the trial court’s decision with respect to parenting time but reverse and remand for a proper determination regarding modification of child support. |
Robertson | Court of Appeals | |
In Re: Spencer E.
Father filed a petition to relocate with the parties’ minor child, and the trial court denied his petition. On appeal, Father argues that the trial court made evidentiary and procedural errors necessitating vacating its decision, that the trial court’s decision denying his petition to relocate was erroneous, and that the trial court erred in declining to award him his attorney fees in defending against Mother’s petition for dependency and neglect. We affirm the decision of the trial court in all respects. |
Williamson | Court of Appeals | |
Robert D. Gray v. Andy B. Roten, II and Gary B. Roten
This case involves an accident between a bicycle and a pick-up truck. Appellant was struck by Appellee’s truck when Appellant failed to obey a stop sign and rode his bicycle into traffic. The trial court found that Appellant was sixty percent at fault for the accident, and, pursuant to a comparative fault analysis, entered judgment for Appellee. On appeal, we find that the trial court erred in applying a pedestrian statute to a bicyclist, but that this error was harmless in light of our finding that Appellant was negligent per se in failing to obey the stop sign, and/or in failing to yield to oncoming traffic. We conclude that the evidence preponderates in favor of the trial court’s finding that Appellant was at least sixty percent at fault so as to foreclose any recovery under a comparative fault analysis. Affirmed for the reasons discussed herein. |
Shelby | Court of Appeals | |
Open Lake Sporting Club v. Lauderdale Haywood Angling Club
This appeal involves a dispute over the location of a boundary line between tracts of land owned by two hunting clubs. After many years of litigation, the parties agreed that a new survey would be conducted by a new surveyor and that they would be bound by his decision. After the new surveyor filed a report and survey, one of the clubs filed a motion to set aside the survey, contending that the new surveyor did not make an independent determination regarding the location of the boundary line, but rather, copied a previous survey that was completed in the past. The trial judge refused to hold a hearing regarding the validity of the survey because the parties had agreed to be bound by the surveyor’s decision. We reverse and remand for further proceedings.ALAN E. HIGHERS, P.J |
Lauderdale | Court of Appeals | |
Betty Rose v. Cookeville Regional Medical Center Authority, et al.
Plaintiff, a lactation consultant formerly employed by Cookeville Regional Medical Center, sued the hospital for common law retaliatory discharge and violation of the Tennessee Public Protection Act; plaintiff also asserted a claim for punitive damages. The case was tried before a jury. At the close of plaintiff’s proof, the court granted the Medical Center’s motion for directed verdict on the Protection Act and punitive damages claims; the common law retaliatory discharge claim was allowed to proceed to the jury. The jury found for the Medical Center. Plaintiff appeals, asserting error in the trial court’s grant of directed verdict and its rulings on evidentiary issues. Finding no error, we affirm. |
Putnam | Court of Appeals | |
State of Tennessee for the use and benefit of Williamson County, et al. v. Jesus Christ’s Church @ Liberty Church Road, et al.
Landowner appeals trial court’s grant of summary judgment to county in action to enforce delinquent tax lien. Finding no error, we affirm the judgment of the trial court. |
Williamson | Court of Appeals | |
In Re: Destiny S.
Hank P. (“Father”) is the biological father of Destiny S. (“the “Child”). After the Child was removed from Father’s home in 2006, the Department of Children’s Services (“DCS”) eventually filed a petition to terminate his parental rights to the Child. Following a trial, the Juvenile Court found that clear and convincing evidence existed to terminate Father’s parental rights pursuant to Tenn. Code Ann. §§ 36-1-113(g)(2) and (g)(3). The Juvenile Court also found that the evidence established clearly and convincingly that it was in the best interest of the Child for Father’s parental rights to be terminated. Father appeals challenging these findings as well as an evidentiary ruling and the Juvenile Court Judge’s refusal to recuse himself. We affirm the Juvenile Court’s judgment. |
Scott | Court of Appeals | |
Teresa J. Allen v. Randy C. Allen
In this divorce case, Plaintiff and her counsel failed to appear in court on the scheduled date of trial. The trial court held the hearing ex parte in their absence. Plaintiff hired new counsel and filed a “Motion to Set Aside Judgment,” which we discern to be a motion pursuant to Tenn. R. Civ. P. 59. The trial court held a hearing on the motion; however, Plaintiff failed to offer any evidence explaining her failure to appear on the scheduled trial date. The trial court denied Plaintiff’s motion. After reviewing the record, we affirm. |
Henry | Court of Appeals | |
Calvin Wilhite v. Tennessee Board of Parole
Appellant filed this petition for common law writ of certiorari when the Board of Probation and Parole denied him parole. He contends the Board’s decision was illegal, arbitrary, fraudulent, and in excess of its jurisdiction. The trial court dismissed the petition for writ of certiorari. We affirm the trial court. |
Davidson | Court of Appeals | |
Tyrone W. Vanlier v. Turney Center Disciplinary Board et al.
An inmate at the Turney Center Industrial Complex filed this petition for writ of certiorari to challenge the ruling of the Turney Center Disciplinary Board that he failed to report for work, imposed a fine, and placed him on probation. After the Board’s ruling was affirmed by the Warden and Commissioner of Correction, this petition was filed. The chancellor dismissed the writ. We affirm the ruling of the chancellor. |
Hickman | Court of Appeals | |
Michael B. Woods v. Metropolitan Development and Housing Authority Board of Commissioners
The petitioner, a former property manager for the Metropolitan Development and Housing Agency, was fired amid allegations that he had sexually harassed tenants and neglected his official duties by failing to properly prepare monthly reports. He appealed the termination of his employment to the Board of Commissioners of MDHA. The Board appointed a hearing officer who conducted a two-day hearing, following which the hearing officer found that the proof was insufficient to support a finding of sexual harassment and recommended that Petitioner be reinstated but demoted due to his failure to provide the required monthly reports. The Board subsequently rejected the recommendation and affirmed Petitioner’s termination based on the risk of future negligent retention sexual harassment suits and the fact he was an at-will employee who could be fired without cause. Petitioner then filed this petition for a common law writ of certiorari, contending MDHA acted arbitrarily, capriciously and illegally because it did not have just cause to fire him and because the decision to terminate him was due to his refusal to waive his right to appeal. The trial court dismissed the petition, finding the Board did not act arbitrarily, capriciously, or illegally because Petitioner was an employee-at-will who could be fired without just cause. We affirm. |
Davidson | Court of Appeals | |
In Re: Convervatorship of Goldie Childs
Two of the daughters of an eighty-two year old woman filed a petition to be named as their mother’s Conservator. The trial court found that the mother did indeed need a Conservator, but because of family disagreements it appointed a third party to perform that role. Seven months later, the same daughters filed a petition to remove the incumbent Conservator and to be named as Co-Conservators to replace her. The mother died after proceedings on the second petition began, but before the trial court could rule on its merits. The Conservator subsequently moved the court for payment of her fees. The court found that some of those fees were incurred as a direct result of the uncooperative acts of the two daughters. Since the decedent’s estate was indigent, the court entered two money judgments for costs against the daughters. We reverse the judgment that was assessed against one of the daughters for failing to return her mother to the nursing home in a timely way, because although her actions led to additional costs, no legal basis for the judgment appears in the record. We vacate the judgment based on the unsuccessful petition to remove the conservator and we remand the case for further proceedings, because although Tenn. Code Ann. § 34-1-114 does allow an assessment of costs against such petitioners, it is unclear how much of the court’s judgment falls within the parameters of that statute. |
Davidson | Court of Appeals | |
Kathy D. Partee v. Jaime Vasquez, M.D.
A woman who suffered prolonged bleeding, pain and disabling injury after gynecological surgery filed a pro se malpractice suit against the doctor who performed the surgery. The defendant filed a motion for summary judgment, accompanied by an affidavit in which he testified that in his treatment of the plaintiff he complied at all times with the relevant standard of acceptable professional practice. Unfortunately for the plaintiff, she was unable to find an expert witness to controvert that affidavit. The trial court granted the plaintiff several continuances to give her the opportunity to procure representation and expert testimony, but when she was unable to do so, the trial court granted the defendant’s motion. We affirm. |
Davidson | Court of Appeals | |
Claude Ramsey, Mayor of Hamilton County, Tenn., et al. v. Tenn. Department of Human Services et al.
The Hamilton County mayor and members of the county commission filed suit against the Tennessee Department of Human Services seeking judicial review of an administrative decision holding that the county penal farm’s commissary and vending machines and the vending facilities at another county building were subject to DHS’s statutory priority regarding blind vendors. The chancellor affirmed the administrative decision, and we affirm the chancellor’s decision. |
Davidson | Court of Appeals | |
In Re Lindsey N.L.
In this child support matter, the mother filed a motion for contempt after the father failed to pay the minor child’s medical bills and insurance expenses as ordered by the trial court. After being found by the trial court to be in contempt, the father requested a new trial or an amendment of the judgment. The trial court denied the request and the father appealed from that order. The State of Tennessee, on behalf of the mother, moved to dismiss the appeal, asserting that it was prematurely filed. Upon our review of the record, we find that the father has appealed from an order that does not resolve all the claims against him. Accordingly, we dismiss the appeal for lack of a final judgment. |
Cocke | Court of Appeals | |
William (Bob) Simerly, et al vs City of Elizabethton
William (Bob) Simerly and Lewis Honeycutt (collectively “the Retirees”), along with numerous other former employees of the Elizabethton Electric System (“the EES”) brought this civil action against the City of Elizabethton (“the City”) to recover the value of certain EES benefits claimed to be owed them and wrongfully withheld by the City. After the City agreed to reduce its claims and counterclaims along with all the former employees taking voluntary dismissals, with the exception of Mr. Simerly and Mr. Honeycutt, both parties jointly filed a motion for partial summary judgment whereby the trial court was asked to rule on the legal validity of the underlying contracts upon stipulation by the parties of a number of exhibits and facts. The trial court granted the Retirees partial summary judgment, finding the underlying contracts to be legally valid, and the benefits promised thereunder to still be in force. The trial court’s partial judgment reserved the issue of the amount of the Retirees’ damages for a later hearing. The City then filed a notice of appeal from the trial court’s ruling before the hearing on the damages could be scheduled. The Retirees moved in this court to dismiss the appeal on the basis of lack of finality of the trial court’s partial judgment. We denied the Retirees’ motion without prejudice. We reverse the ruling of the trial court on the partial summary judgment. |
Carter | Court of Appeals | |
In Re Bevin H.
This is a case regarding the custody of a minor female child, Bevin H. (DOB: Dec. 19, 2001) (“the Child”). The Child was born to Randy H. (“Father”) and his wife. Tragically, the Child’s mother died two days after the Child was born. Shortly thereafter, the Child’s paternal aunt, Rhonda H. (“Aunt”) and her husband, became the Child’s primary caregivers. Aunt sought custody, alleging that the Child was dependent and neglected in Father’s care. During the pendency of the custody case, the Child was taken into state custody based on evidence that she had been sexually molested. The Child was released to Father and Aunt under an agreed shared parenting plan before the parties filed competing custody petitions. Following a hearing, the juvenile court granted Aunt custody of the Child upon finding that the Child faced a risk of substantial harm if left in Father’s custody. Father was granted supervised visitation with the Child. Father appealed to the trial court. In a two-sentence decision, with no findings of fact, the trial court reversed and placed full custody of the Child with Father. Aunt appeals. We reverse. |
Blount | Court of Appeals | |
In Re Conservatorship for WilIiam J. Allen
In this conservatorship action, we granted the application of Jay R. Slobey, James A. Freeman, III and Megan E. Livingstone, all attorneys, for a Tenn. R. App. P. 10 extraordinary appeal seeking relief with respect to two interlocutory orders of the trial court. The orders are: (1) one prohibiting attorneys with the law firm of James A. Freeman & Associates, P.C. from representing William J. Allen (“the Ward”); and (2) another appointing attorney David L. Robbins as “Attorney ad Litem” but requiring him to perform duties “pursuant to T.C.A.§34-1-107,” a statute dealing with guardians ad litem. After this appeal was granted, the trial court entered an order purporting to “amend its order . . . which appoints David L. Robbins to serve as Attorney ad Litem pursuant to Tenn. Code Ann. § 34-1-107 . . . to reflect that David L. Robbins is to serve . . . pursuant to Tenn. Code Ann. § 34-1-125,” a statute pertaining to attorneys ad litem. The court’s amending order is also being challenged. We (a) affirm the order prohibiting the representation of the Ward by attorneys from the law firm of James A. Freeman & Associates P.C., and (b) vacate the order appointing Mr. Robbins and the later order purporting to amend the order of appointment. |
Carter | Court of Appeals |
