Willard D. Gore, et al. v. Tony Stout, et al.
This appeal involves a dispute between two landowners over use of a route across the defendants’ land that the plaintiffs use for access to their nearby land. Plaintiffs filed suit contending they had a right to use the disputed route. The trial court determined that the route had been dedicated and accepted as a public road, that the plaintiffs were entitled to a prescriptive easement over the defendants’ land, and that the plaintiffs had a right to use the road by adverse possession. We have determined that the contested section of the route is not a public road, that adverse possession does not apply, and that the plaintiffs are entitled to a prescriptive easement over the defendants’ land. |
Putnam | Court of Appeals | |
In Re: B. C. W. John Gregory Wilson v. Naomi Jones, et al.
This is an appeal from the dismissal of a petition to modify custody of a minor child. The trial court determined that the petitioner, the natural father of the child, should not be afforded the superior rights of a parent. We disagree and reverse. |
Davidson | Court of Appeals | |
Joe Gambrell, et al. v. Sonny Nivens, et al.
This case involves the enforcement of restrictive covenants in equity. After subdividing their property, imposing restrictions on the three lots they sold, and retaining the remaining land, vendors brought suit against remote grantees to enforce the restrictive covenants and to enjoin them from operating a wedding chapel, for commercial use, on the land. The central issue on appeal is whether the restrictions bind the remote grantees when the covenants were listed on an undated and unsigned attachment to a deed that neither identified encumbrances nor incorporated the attached restrictions. Following a trial on the matter, the trial court permanently enjoined the commercial activity because the remote grantees took title with actual notice of the restrictions. Finding ample support for the imposition of an equitable servitude, we concur in the trial court’s judgment. Affirmed and remanded. |
Fayette | Court of Appeals | |
MBNA America Bank N.A. v. Charles Hendricks
Bank filed suit to enforce an arbitration award for a debt owed by a former credit card holder. The trial court granted summary judgment against the debtor, who appeals based on alleged procedural improprieties. We affirm. |
Cheatham | Court of Appeals | |
Sarah Elizabeth Ferguson v. Johnny Wayne Ferguson - Dissenting
Because I disagree with the majority’s conclusion as to the classification of some of the personal property at issue in this appeal, I must dissent. It is undisputed that the boat and trailer were Husband’s separate property prior to the marriage. Consequently, we must begin with the presumption that they should be classified as his separate property. Tenn. Code Ann. § 36-4-121(b)(2). Therefore, the burden of proving that the property had been transmuted into marital property lay with Wife. Based on the record before us, I do not believe that Wife met that burden. |
Lawrence | Court of Appeals | |
Sarah Elizabeth Ferguson v. Johnny Wayne Ferguson
Husband appeals the award of certain items of personal property to Wife in a divorce action. Husband and Wife lived together for many years prior to the marriage and acquired both personal and real property during their cohabitation in addition to the property each owned individually. Husband argues that there was no evidence to support a finding that items awarded Wife, specifically a Corvette, a boat, and a trailer, could be considered marital property or the separate property of Wife. Thus, Husband contends that the trial court erred in its distribution of assets. Finding no error below, we affirm the judgment of the trial court. |
Lawrence | Court of Appeals | |
Clear Channel Outdoors, et al. v. Tennessee Department of Transportation
This appeal is from a final order in a proceeding for judicial review of an administrative decision pursuant to Tenn. Code Ann. § 4-5-322. The Tennessee Department of Transportation (“TDOT”) filed this action claiming that a billboard which was rebuilt by the defendants after it was blown down in a storm did not meet the requirements of the regulation governing reconstruction of stormdamaged billboards. Following a hearing, the Administrative Law Judge determined that the rebuilt billboard violated the applicable regulation and ordered its removal. The decision was affirmed by the TDOT Commissioner (“the Commissioner”), and later by the Chancery Court for Davidson County (“the Trial Court”). On appeal, we find that the Trial Court did not have the necessary administrative record before it as required when it reviewed this case. Because the Trial Court’s review is limited to the administrative record, Tenn. Code Ann. § 4-5-322(g), and the complete administrative record was not available to the Trial Court, we vacate the Trial Court’s judgment and remand for a new review to be conducted after the full administrative record is filed with the Trial Court. We vacate and remand. |
Davidson | Court of Appeals | |
Virginia Elrod v. Continental Apartments, et al
The unsuccessful plaintiff appeals the summary dismissal of her slip and fall claim against an apartment complex and its owner. During the second day of a winter storm, the plaintiff traveled along icy roads to make a security deposit at the apartment complex. Although she had carefully exited her vehicle and walked to the office to make the deposit, she chose to “trot” back along the same path to her car. While trotting to her car, she slipped on the icy parking lot, breaking her ankle. The trial court summarily dismissed the plaintiff’s complaint. Viewing teh facts in a light most favorable to the plaintiff, we find that reasonable minds could not differ that the plaintiff's fault was greater than that of the defendants. We, therefore, affirm. |
Coffee | Court of Appeals | |
Robin Lee Stanfill, et al. v. John T. Mountain, et al.
This appeal arises out of a real estate transaction in Maury County, Tennessee, wherein the Plaintiffs/Appellants purchased property from Defendants/Appellees John T. Mountain and Melody Mountain. Defendant/Appellee Carl Brooks served as an independent real estate agent for the transaction. Plaintiffs filed suit against the Defendants alleging fraud, misrepresentation and violation of the Consumer Protection Act. Both Defendants filed motions for summary judgment. By Order dated April 19, 2006, the trial court granted summary judgment in favor of the Defendants. Subsequently, the trial court awarded discretionary costs against the Plaintiffs. For the following reasons we affirm the judgment of the trial court. |
Maury | Court of Appeals | |
Emmanual Small, et al. v. Shelby County Schools, a/k/a Board Of Education, Shelby County Schools
This is a negligence claim brought by a student against a school board pursuant to the Tennessee Governmental Tort Liability Act. The plaintiff, a student at Millington Middle School, began experiencing breathing problems after physical education class. The physical education teacher was unaware of the student’s asthma, or the fact that the student was mentally retarded. The mother came to school and picked up her son, who was later taken to Le Bonheur Children’s Medical Center in Memphis, where he remained for six months. The mother then brought a negligence claim on behalf of her son against the school board. During discovery, the student’s attorney failed to disclose the student’s treating doctor as an expert witness. The school board sought to exclude testimony from the doctor concerning causation of the student’s injuries and the reasonableness and/or necessity of the medical charges. The court allowed the testimony concerning causation and necessity, but excluded testimony related to reasonableness. In its answer, the school board failed to raise the affirmative defense of comparative fault. On the first day of trial, the court granted the school board leave to amend its complaint to include the comparative fault of other individuals, including the student’s mother. After a bench trial, the circuit court entered a judgment in favor of the student in the amount of $3 million dollars, but reduced that award to $130,000 pursuant to the Governmental Tort Liability Act. The student’s attorney then moved for an award of discretionary costs, which the court denied. The school board appeals, alleging that it is immune from suit because its employees were performing a discretionary function. Next, the school board argues that the court erred by allowing the doctor to testify concerning causation and necessity because the student’s attorney failed to disclose the doctor as an expert witness. Finally, the school board argues that the only witness that corroborated the student’s claim was not credible. The student raises the issue of whether the court erred in allowing the school board to amend its answer to include comparative fault, and whether the court erred in refusing to award discretionary costs. For the following reasons, we affirm. |
Shelby | Court of Appeals | |
Danny Jones, et al. v. Shelby County Division of Corrections
The Appellant, Shelby County Division of Corrections (“SCDC”), appeals the judgment of the trial court in favor of Appellee inmates. Appellee inmates filed suit against the SCDC, under the Tennessee Governmental Tort Liability Act (“GTLA”), for injuries sustained when a metal ventilation system fell from the ceiling while officers were performing a search of the cell block. The SCDC asserts three points of error: (1) that the SCDC is not a governmental entity, as defined by T.C.A.§ 29-20-102(3)(A) of the GTLA so as to be subject to suit thereunder; (2) that expert testimony was required as to the cause of the system’s collapse; and (3) that the trial court erred in not considering the fault of unknown inmates in manipulating the ventilation system. Finding no error, we affirm. |
Shelby | Court of Appeals | |
Jerry Freeman, et al. v. Lewisburg Housing Authority
The trial court granted summary judgment to the defendant public housing authority, dismissing claims by its former employees for retaliatory discharge in violation of the Tennessee Public Protection Act and for constructive discharge based on a racially hostile work environment in violation of the Tennessee Human Rights Act. Because we find that the employees failed (1) to establish an essential element of a claim for retaliatory discharge or (2) to show that the hostile work environment was racially discriminatory, the judgment of the trial court is affirmed in all respects. |
Marshall | Court of Appeals | |
Alena Wharton v. Robert Wharton
This interlocutory appeal arises from a petition for contempt to enforce a child support order. Although it is undisputed that neither the parents nor the child who is the subject of the support order in this case resided in Crockett County for at least six months prior to the filing of the current petition, the trial court denied Mother’s request under Tennessee Code Annotated § 36-5-3003 to transfer the matter to Dyer County, where the child resides with Father. We reverse, remand, and order the matter transferred. |
Crockett | Court of Appeals | |
Farrell Nesbitt v. Paula Nesbitt
This appeal arises from a dispute regarding the trial court’s award of alimony in futuro to Paula Nesbitt. The trial court granted the parties’ divorce, pursuant to Tennessee Code Annotated § 36-4-129, and ultimately awarded the divorce to the wife because the husband appeared to be at greater fault on the grounds of inappropriate marital conduct. Farrell Nesbitt challenges the trial court’s alimony in futuro award, arguing rehabilitative alimony was the proper award. We affirm the trial court’s ruling. Costs of this appeal shall be assessed to the appellant, Ferrell Nesbitt. |
Davidson | Court of Appeals | |
Metropolitan Government of Nashville and Davidson County, v. Daryl K. Stark
The Trial Court granted defendant permission to attend traffic school in lieu of a fine. On appeal, we reverse because State and federal law does not permit diversion for a commercially licensed operator. |
Davidson | Court of Appeals | |
In Re: The Estate of Charles R. Ray, Tony V. Carruthers, v. Sandra B. Ray
Plaintiff filed a legal malpractice claim against defendant’s Estate. The Trial Court held the claim against the Decedent’s Estate was barred by the statute of limitations. On appeal, we affirm. |
Davidson | Court of Appeals | |
Linda Mae (Edwards) Maloy v. Paul David Maloy
This is a divorce case. The husband is a musician and songwriter; the wife is a medical assistant. During the marriage, the husband became physically incapacitated, and the wife quit her job and took care of him. The parties’ living expenses and costs associated with the husband’s medical care were funded through monies that the wife inherited as well as credit cards. This resulted in significant credit card debt. The husband eventually recovered, but was deemed completely disabled and received social security disability payments during the marriage. The wife then had a health crisis. During the wife’s health crisis, the husband took over the parties’ finances, and both parties signed a document outlining division of the parties’ property in the event of divorce. Over a year later, the wife filed for divorce, based in part on the husband’s failure to care for her during her health crisis. The husband counterclaimed for divorce. After declaring the parties divorced, the trial court held a trial on the issue of property division. After one day of testimony, the husband filed a motion seeking to enforce the document signed by the parties purporting to divide their property in the event of divorce. After the hearing, the trial court refused to enforce the alleged agreement. It divided the marital property, including in the marital estate the social security disability payments that had been received by the husband. The trial court refused, however, to divide the parties’ marital debt. The husband appeals the trial court’s refusal to enforce the alleged agreement and the inclusion of his social security disability benefits in the marital estate. Both parties appeal the trial court’s failure to divide the marital debt. We affirm in part and reverse in part, finding that (1) the social security disability payments were properly included in the marital estate, (2) the document is neither an MDA nor an enforceable postnuptial agreement, and (3) the trial court erred in refusing to divide the parties’ marital debt. |
Wilson | Court of Appeals | |
Foster Business Park, LLC v. J & B Investments, LLC, et al.
The plaintiff, a debtor under a promissory note, brought this action against two defendants, the bank that issued a promissory note to the plaintiff and the holder of the note for charging and attempting to collect a rate of interest the plaintiff contends was usurious. In the Complaint, the plaintiff contends that two defendants engaged in unconscionable conduct under Tenn. Code Ann. § 47-14-117(c) and unfair and deceptive practices in violation of the Tennessee Consumer Protection Act. The bank’s conduct at issue pertains to its issuance of a promissory note to Foster that contained a default rate of interest of 24%, which the plaintiff contends is usurious. The conduct of the other defendant, the holder of the note, pertains to its attempts to collect the default rate of interest. The Chancellor dismissed the plaintiff’s complaint upon the defendants’ Tenn. R. Civ. P. 12.02(6) motions to dismiss, concluding that the interest was not usurious, and therefore, the complaint failed to state a claim upon which relief could be granted. We affirm. |
Davidson | Court of Appeals | |
Martha Smith, et al. v. Greg Brooks, et al.
In 2005, Martha Smith and her husband, Brian D. Smith, filed suit (“the First Lawsuit”) in the trial court against four individuals and the Polk County Board of Education (“PCBE”). Each of the four counts in the complaint includes an allegation that defendants Greg Brooks, Tracy McAbee, and Grady Samples “were acting in their official capacity while engaging in their illegal and tortious activity and . . . these defendants . . . are duly elected members of PCBE.” An order of voluntary nonsuit without prejudice was entered in the First Lawsuit as to PCBE and all of the individual defendants except a non-board member, Shane Wooten. In 2006, the plaintiffs again filed suit (“the Second Lawsuit”). The “illegal and tortious activity” alleged in the Second Lawsuit is identical to that alleged in the First Lawsuit. The Second Lawsuit names Brooks, McAbee, and Samples (“the defendants”) as the sole defendants. They are sued as individuals and not as members of PCBE. The defendants filed a motion to dismiss – citing Tenn. R. Civ. P. 12.02(6) – asserting that the Second Lawsuit had been filed outside the period of the applicable statute of limitations. The trial court agreed and dismissed the Second Lawsuit. The plaintiffs appeal, relying upon Tenn. Code Ann. §28-1-105(a) (2000), a part of the so-called Tennessee saving statute. We hold that, under the facts of this case, the saving statute is not available to the plaintiffs to preserve their causes of action against the defendants in their individual capacities. Accordingly, we affirm. |
Polk | Court of Appeals | |
Lillie Walker vs. Collegetown Mobile Estates, Inc.
Plaintiff who fell in a mobile home sued the lessor owner for damages for injuries. The Trial Court granted summary judgment to defendant. On appeal, we vacate the summary judgment and remand. |
Bradley | Court of Appeals | |
In Re: Adoption of D.R.T., d/o/b 12/25/93 Kevin Dean Turnage v. Misty Renee Mitchell Carr
This is a case involving the chancery court’s decision not to terminate a mother’s parental rights. The father and his wife petitioned the court to terminate the mother’s rights and allow the wife to adopt the minor child. The court held a termination hearing to determine if the other’s rights should be terminated. In the order dismissing the petition for termination and adoption, the court found that the mother had not abandoned the child by failure to visit because her attempts to maintain contact and visit the child were thwarted by the father and his wife. As to the father and wife’s contention that the mother abandoned the child by her failure to pay child support, the court found that the mother had no reason why she did not pay child support, but then found that her failure to pay did not constitute abandonment. On this appeal, we do not have a transcript of the trial proceedings. The father filed a statement of the evidence, and the mother filed an objection to the father’s proposed statement of the evidence. In the mother’s filed objection, she stated that the parties stipulated at trial that her failure to pay child support “was not sufficient in itself to terminate [her] parental rights.” The chancery court certified its own statement of evidence, concurring with the mother’s filed objection and stating that the mother’s failure to pay child support was not willful |
Tipton | Court of Appeals | |
Darryl J. Roberts vs. The Baylor School
Plaintiff sued recipient of an inter vivos gift to recover the gift on the grounds defendant violated a fiduciary duty owed to plaintiff, and the failure of defendant to comply with conditions of the gift. The Trial Court ruled in favor of defendant. We affirm. |
Hamilton | Court of Appeals | |
Wells Fargo Financial Leasing, Inc. v. Mountain Rentals of Gatlinburg, Inc.
Wells Fargo Financial Leasing, Inc., brought this action against Mountain Rentals of Gatlinburg, Inc., to collect rent under an equipment lease. The trial court granted summary judgment to Wells Fargo, and Mountain Rentals appealed. After careful review, we hold that the rental agreement is an enforceable finance lease and that Mountain Rentals’s obligation to pay rent was irrevocable and independent. The judgment of the trial court is affirmed. |
Sevier | Court of Appeals | |
Eric Magness et al. v. Terrell W. Couser et al.
This case involves a property dispute between neighbors. Property owner and her son who resides on her property brought an action to quiet title and for ejectment against a neighboring property owner. The trial court imposed sanctions against the defendant under Rule 37 of the Tennessee Rules of Civil Procedure for failing to comply with its order compelling discovery responses. The court subsequently granted the plaintiffs’ motion for partial summary judgment and, after a hearing on damages, issued a permanent injunction against the defendant and her son and a judgment for damages and costs against the defendants. The defendants have appealed. We affirm the trial court’s judgment in part, reverse in part and remand. |
Williamson | Court of Appeals | |
Verdis Chambers v. Tennessee Board of Probation and Parole, et al.
An inmate appeals the dismissal of his lawsuit under Tenn. Code Ann. § 41-21-807(b) for failure to make partial payment of the filing fee and argues the trial court abused its discretion in failing to specify the amount of the partial payment due. The trial court gave the inmate an opportunity to make the filing fee payment prior to dismissal and was not required to specify the amount due since the statute provided the formula to determine the amount of the partial payment due. We affirm the judgment of the trial court. |
Davidson | Court of Appeals |
