Marty Kendall v. Vanderbilt Bill Wilkerson Center
Plaintiff appeals the dismissal of her lawsuit as being time barred. Plaintiff timely filed an action for wrongful discharge of her employment. Summons was issued but never served on Defendant. Plaintiff then took a voluntary dismissal but did not serve, nor attempt to serve, a copy of the notice of voluntary dismissal, the order of dismissal or a copy of the initial complaint on Defendant as required by Tenn. R. Civ. P. 41.01. Plaintiff filed this action to revive her claim of wrongful discharge within one year of the voluntary dismissal of her first action but more than one year after termination of her employment. Defendant filed a Motion to Dismiss contending that Plaintiff's claims were time barred, which the trial court granted. Plaintiff appealed. We affirm. |
Davidson | Court of Appeals | |
In the Matter of D.B. (d.o.b. 6/2/01) State of Tennessee Department of Children's Services v. Ramona Bokan and Aire Thomas Dailey
This case is about termination of parental rights. The father was incarcerated, and the mother lived in a mobile home in abysmal conditions, with no telephone and no transportation. The child was born on the floor of the mobile home and hospitalized shortly thereafter. Due to the poor living conditions, the State took custody of the child. Over the next three years, the mother and father worked with the Department of Children’s Services in an attempt to remedy the conditions that prevented the child’s return. These conditions included alcohol and drug abuse and domestic violence. The juvenile court found that the parties continued to engage in physical abuse, and that the mother nevertheless continued to live with the father, creating unsafe living conditions for the child. The juvenile court terminated the parental rights of both parents, finding that the conditions that precluded the child’s safe return to the home still persisted after three years and would likely continue. The mother appealed. We affirm, finding that the evidence supports the juvenile court’s finding of persistent conditions. |
Benton | Court of Appeals | |
Carol Ann Pellett Smith v. William Ashby Smith, Jr.
In this post-divorce proceeding, Wife sought an increase in child support based upon Husband's substantial inheritance from his mother. She also sought relief for Husband's alleged breach of the Marital Dissolution Agreement relative to the disposition of property. She further sought child support based upon imputed income of Husband because of voluntary underemployment. Husband appealed the judgment of the trial court. Wife assigned error as to certain findings by the trial court. We affirm as modified herein the judgment of the trial court. |
Williamson | Court of Appeals | |
Tennessee Insurance Guaranty Association v. Centre Insurance Company
Tennessee Insurance Guaranty Association, a statutory agency created to meet certain obligations of insolvent insurance companies relative to workers' compensation, sued Centre Insurance Company seeking exoneration of certain workers' compensation obligations assumed by the agency upon the insolvency of Commercial Compensation Insurance Company. The trial judge granted summary judgment to Centre, and we affirm the action of the trial court. |
Davidson | Court of Appeals | |
Freddie D. Alley v. McLain's Inc. Lumber and Construction, et al.
This case involves the wrongful cutting of timber on the plaintiff’s property. Freddie D. Alley brought this action against McLain’s Inc. Lumber and Construction, which cut and harvested timber from his property after Defendant Stephen Snodgrass falsely represented to McLain’s that he owned the property and wanted to sell the timber. McLain’s filed a counter-complaint and a third-party complaint against the co-owners of the property, alleging their comparative fault in preparing and executing a contract for sale of the real estate to Mr. Snodgrass. The case was tried to a jury, which found the co-owners partially at fault, Mr. Snodgrass partially at fault, and no fault on the part of McLain’s. The issue presented is whether the trial court erred in failing to set aside the jury verdict and grant a new trial. We hold that based on stipulations prior to trial, there was no material evidence of negligence on the part of the co-owners. We also hold that the jury verdict is inconsistent. Therefore, we reverse the judgment in part, vacate in part and remand for a new trial. |
Hawkins | Court of Appeals | |
Hal Gerber v. Virginia Starr Segal
This is the second appeal in an action to collect attorney’s fees. The plaintiff attorney represented the defendant in her divorce action, which lasted from 1996 to 1999. He billed the defendant approximately $100,000 for his services. Over the course of the divorce action, the defendant paid |
Shelby | Court of Appeals | |
Barbara Johnson, et al. v. Edward Pratt, M.D.
Plaintiff/Patient filed a complaint against Defendant/Doctor alleging medical malpractice for failure to obtain her informed consent before operating. The trial court granted summary judgment to Defendant/Doctor on the basis that Plaintiff/Patient had failed to meet the burden of proof required by T.C.A. §29-26-115 and T.C.A. §29-26-118. Plaintiff appeals. We affirm. |
Shelby | Court of Appeals | |
Nathan and Brandy Henderson, v. Quest Expeditions, Inc.
In this action for personal injuries allegedly due to defendant's negligence, the Trial Court granted defendant summary judgment on the grounds that plaintiffs had executed a Waiver and Release of Liability which was required by defendant prior to plaintiffs' participation in white water rafting. Plaintiffs have appealed, insisting the Release is void as against the public policy of this State. We affirm. |
Polk | Court of Appeals | |
Gregory D. Bargo and Angela R. Bargo v. Larry Schmitt Construction Inc., Larry Schmitt and Donna Schmitt
Grantors erected a house and driveway over an easement which was then sold to grantees. Grantees brought an action for damages to encumbered property and the Trial Court awarded grantees damages. We affirm. |
Hamilton | Court of Appeals | |
In Re: M.L.D.
Petitioners, Mother and her husband, brought a petition to terminate Father’s parental rights on the grounds of abandonment. The trial court found that clear and convincing evidence did not support a finding a willful abandonment and dismissed the petition. We affirm. |
Shelby | Court of Appeals | |
In Re: Estate of William Hugh Luck Thomas Benton Luck, et al., Executors v. FDS/Goldsmith's
Following the decedent’s death, his estate was not admitted to probate until well over one year from the date of his death. A creditor filed a claim against the estate over twenty-one months after the decedent’s date of death. The executors filed an exception to the creditor’s claim arguing that it was barred since it was not filed within one year of the decedent’s date of death. The probate court, relying on a previous decision rendered by this Court, held that the creditor’s claim was not barred by the applicable statutes. After reviewing the applicable statutory language and the decisions rendered by this Court interpreting those statutes, we reverse. |
Shelby | Court of Appeals | |
Stanley David Kahn v. Randa Lipman Kahn
This appeal arises out of a divorce between the parties. In its decree, the trial court declared the parties were divorced, divided the marital property and the debts of the parties, ordered the husband to pay the entire balance of the guardian ad litem fees, named the wife the primary residential parent, and ordered the husband to pay wife child support. The husband now appeals to this Court. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings. |
Shelby | Court of Appeals | |
Ruby Angelo Smith and Charles Smith v. Sammie L. Shaw
This case is about a motion to set aside an order of dismissal. In 1997, the plaintiff sued the defendant for damages resulting from a 1996 car accident. On February 18, 2002, the trial court signed an order dismissing the lawsuit for failure to prosecute. That order was not filed by the court clerk until two years later, on February 18, 2004. During the two years between the time the dismissal order was signed until it was filed, both parties continued discovery and negotiation. After discovering the dismissal in 2004, the plaintiff asserted that neither party had received notice of the dismissal. The plaintiff then filed motions under Rules 59 and 60 of the Tennessee Rules of Civil Procedure, asking the trial court to set aside the order of dismissal. The motions were denied, and the plaintiffs appeal. We reverse, finding that under the circumstances of this case, the order of dismissal should have been set aside. |
Shelby | Court of Appeals | |
The Alison Group, Inc. v. Greg Ericson, Individually d/b/a Ericson & Associates, et al.
This appeal arises out of an action filed by Appellee to confirm an arbitration award. Appellants contest whether Appellee, as a foreign corporation without a certificate of authority, may avail itself of the Tennessee judicial system to enforce the arbitration award. The trial court determined that Appellee was exempted from the requirement of obtaining a certificate of authority and confirmed the arbitration award in favor of Appellee. Additionally, the trial court denied Appellee’s request for attorney’s fees incurred to collect the arbitration award. For the following reasons, we affirm. |
Shelby | Court of Appeals | |
Clinton William Clarneau v. Angela Dawn Clarneau
This is a custody dispute. The trial court granted the father's petition to modify custody and changed primary custody of the parties' two minor children from the mother to the father, based on findings of a material change of circumstances and the best interests of the children. On appeal, we reverse the trial court's modification of custody finding there has not been a material change of circumstances justifying a change of custody and that the children's best interests are served by remaining with Mother. |
Bedford | Court of Appeals | |
Sandra Lee Buettner v. Neil William Buettner - Concurring and Dissenting
I must respectfully dissent from the majority’s holding that there should be no increase in alimony upon the younger child reaching the age of majority. As the majority states, the various provisions of the contract must be construed together, and we should seek to ascertain the intention of the parties based upon the usual, natural, and ordinary meaning of the language employed. Reading the provisions of the MDA, it is my interpretation that the intention of the agreement is clearly set out that “as each child reaches 18 years of age or graduates from high school or should have done so, whichever is the last to occur, the defendant will have to begin an additional alimony in futuro payment as herein before calculated.” (Emphasis added). This provision, coupled with the express provision of the MDA stating “furthermore, this obligation or these payments are to be made regardless of who the child is living with or who may have custody of the children when the child reaches or should have reached 18 years of age or graduates from high school,” indicates to this member of the Court that the obligation for additional alimony is not governed by whether Mr. Buettner would have any child support obligation payable but is governed by what he would have an obligation for in the way of child support based upon the guidelines. |
Henry | Court of Appeals | |
Sandra Lee Buettner v. Neil William Buettner
The trial court increased Husband’s alimony obligation pursuant to the parties’MDA. It also denied Husband’s petition to modify alimony and increased Wife’s child support obligation retroactive to June 1, 2003. We affirm in part, reverse in part, and remand. |
Henry | Court of Appeals | |
Lorenzo C. White, et al. v. Carolyn Fields Hayes, et al.
This is a will construction case. The testator died in 1912, leaving a holographic will. In the will, the testator left his real estate to his children for life, then to his grandchildren for life, then to his great-grandchildren until they became of age, then to be divided “as law directs.” In 1992, after the last grandchild had died, the great-grandchildren of the testator petitioned the trial court to interpret the will and set out the rights of the parties. The trial court concluded that the testator intended to leave the remainder interest in his property to the great-grandchildren per stirpes. The appellant great-grandchild filed the instant appeal, claiming that the trial court should have construed the devise as being per capita, not per stirpes. We affirm, concluding that the trial court’s finding of a per stirpes division of the property is consistent with the laws of intestate succession in Tennessee. |
Tipton | Court of Appeals | |
National Bank of Commerce v. Universal Transaction Consultants, Inc.
Plaintiff National Bank of Commerce filed a declaratory judgment action seeking a declaration that its agreement with Defendant Universal Transaction Consultants, Inc. was null and void for Defendant’s failure to perform a condition precedent. Defendant counter-claimed for breach of contract and tortious interference with contract. The trial court determined that Universal Transaction Consultants had failed to prove damages and dismissed the claims of both parties. We affirm. |
Shelby | Court of Appeals | |
Gary Flanary, et al. v. Carl Gregory Dodge of Johnson City, LLC - Concurring and Dissenting
I concur with the majority opinion on all issues raised except the final issue of enforceability of the contract, having only been signed by Flanary. |
Washington | Court of Appeals | |
Gary Flanary, et al. v. Carl Gregory Dodge of Johnson City, LLC
Gary Flanary filed suit against Carl Gregory Dodge of Johnson City, LLC (“the dealership”) and alleged that the dealership, without negotiation and without his consent or knowledge, had charged him an “administrative fee” in connection with his purchase of a vehicle. Flanary claimed that this practice violated, inter alia, the Tennessee Consumer Protection Act (“the TCPA”). He sought class action certification. The dealership filed a motion for summary judgment, relying upon the arbitration agreement (“the Agreement”) signed by Flanary to support its position that Flanary was required to arbitrate his claims. The trial court stated that it personally did not believe an agreement to arbitrate under the circumstances of this case was fair; but, nevertheless, it opined that it felt compelled by the current state of the law to hold that arbitration was mandated by the terms of the Agreement. Flanary appeals the trial court’s order requiring him to submit to arbitration. We affirm the judgment below to the extent the trial court, albeit reluctantly, held that the Agreement, on its face, is enforceable. However, based upon our determination that there is a genuine issue of material fact as to whether there was mutuality with respect to the obligation to arbitrate, we vacate so much of the trial court’s judgment as holds that the parties entered into a contract to arbitrate. Accordingly, we remand for further proceedings on Flanary’s complaint. |
Washington | Court of Appeals | |
Christy Michelle Berry vs. Lester Stephen Berry
This is a post divorce child custody case. The trial court changed custody to the father based upon the mother's homosexuality and the effect it would have on the child as he grew older. We hold that the evidence preponderates against the trial court's finding that there had been a material change in circumstances to justify a change of custody in the absence of proof that the mother's sexual orientation had affected or would affect the child's well-being in any meaningful way. Accordingly, the trial court's decision is reversed. |
Knox | Court of Appeals | |
Christy Michelle Berry vs. Lester Stephen Berry - Concurring
I concur in the majority’s opinion. I write separately to stress that which is missing in this case, i.e., evidence, be it in the form of expert testimony or otherwise, showing that the subject child has been, or can reasonably be expected to be, adversely affected by his mother’s lifestyle. In my opinion, the trial court’s judgment must be reversed because of a lack of proof to support its critical finding of adverse effect. |
Knox | Court of Appeals | |
Shannon D. Young v. Tony Parker, et al.
The Petitioner, an inmate in custody of the Tennessee Department of Correction, appeals from the order of the trial court dismissing his petition for common law writ of certiorari as being untimely filed. We affirm. |
Lake | Court of Appeals | |
Keith Edward Garrett v. Priscilla Louise Garrett, et al., Estate of Luther Gaston Garrett
In this second appeal of this case, the Trial Court had ruled that appellee was entitled to a dwelling house and all improvements on land owned by the Deceased. Appellant appeals this and numerous issues. We affirm. |
Fentress | Court of Appeals |
