This case arises from an automobile accident resulting in personal injuries to plaintiffs. The defendants, Mr. & Mrs. Ruiz, filed a motion for summary judgment on the grounds that their cousin, Mr. Corpus, was driving their vehicle without their permission or knowledge at the time of the accident. The trial court granted the motion and plaintiffs appeal. Plaintiffs assert that under Tenn. Code Ann. § 55-10-311, defendants are not entitled to summary judgment based solely on their own self-serving affidavits and depositions. We affirm the summary judgment
I do not believe that the prima facie evidence created by Tennessee Code Annotated section 55-10-311 can be overcome as a matter of law solely by the affidavits and testimony of owners of a vehicle who have a vital interest in the outcome of the case.
The mother ("Mother") and stepfather ("Stepfather") of a minor child ("Child") filed a Petition to Terminate the parental rights of the Child's biological father ("Father"). The Petition to Terminate alleged one ground for termination of Father's parental rights, abandonment. After three hearings, the Juvenile Court held that the Petition to Terminate should be dismissed because Mother and Stepfather failed to establish by clear and convincing evidence that Father had abandoned the Child and because termination of Father's parental rights would not be in the Child's best interests. Mother and Stepfather appeal. We affirm.
This is a nuisance case. The plaintiff landowners sued the developer of a subdivision adjacent to their property for digging a drainage ditch that caused frequent flooding. The defendant developer filed counter-claims, including an allegation that the plaintiffs and the previous owners of his property had conspired to breach the agreement to sell the property to the developer. The developer also argued that the city had taken steps to alleviate the flooding. The trial court found that the developer had created a permanent nuisance by changing the natural flow of water across his property, and dismissed the developer's counter-claims. On appeal, we affirm the trial court's finding of a nuisance, but conclude that the circumstances created both a temporary and a permanent nuisance, and remand for recalculation of damages based on this holding.
Montgomery
Court of Appeals
Barry Ralston vs. Gina Henley M2001-02274-COA-R9-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Carol L. Soloman
This interlocutory appeal involves a dispute between divorced parents regarding the education of their eight- and ten-year-old daughters. Four years after the Circuit Court for Davidson County awarded the parents joint custody of their children with the mother receiving primary physical custody, the mother unilaterally decided to withdraw the children from public school and to home school them over the father's objection. After the trial court denied his request to enjoin the mother from removing the children from public school, the father perfected this Tenn. R. App. P. 9 appeal seeking review of the trial court's decision that the mother had the sole prerogative to make decisions regarding the children's education. We have determined that an interlocutory appeal will prevent needless, expensive, and protracted litigation. Accordingly, we grant the interlocutory appeal and vacate the trial court's order denying the father's petition to enjoin the mother from removing the parties' children from public school in accordance with Tenn. R. App. P. 10(b).
Davidson
Court of Appeals
Jack Jones v. Melvin Johnson M2002-01286-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol L. Soloman
This suit arose from the deliberate destruction of a walnut tree on the plaintiffs' property. The trial court awarded the plaintiffs $5,500 in damages. The defendant argues on appeal that the court used the wrong measure to calculate damages, and that the judgment should not have exceeded $1,000. We affirm the trial court.
Davidson
Court of Appeals
Earl Van Winkle, et al vs. City of LaVergne M2000-01784-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert E. Corlew, III
This appeal involves the disputed ownership of water lines. The City of LaVergne appeals the trial court's ruling that the city was the owner of the water lines and responsible for their continued maintenance and repair. LaVergne also appeals the trial court's award of $3037.31 to the Van Winkles. For the reasons set forth below, we affirm the ruling of the trial court.
Rutherford
Court of Appeals
Eddie Cooley v. Joe May M2001-01162-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Buddy D. Perry
This appeal involves a state prisoner's efforts to obtain an accounting for the sentence credits he earned while incarcerated in the Sequatchie County Jail. After the prisoner discovered that the Tennessee Department of Correction had received no information from the Sheriff of Sequatchie County regarding his sentence credits, he filed a petition for writ of mandamus in the Circuit Court for Sequatchie County seeking to compel the sheriff to calculate his sentence credits and forward the information to the Department. The sheriff filed a pro se response asserting that the prisoner forfeited any sentence credits he may have earned by violating his parole. Thereafter, the District Attorney General for the Twelfth Judicial District moved to dismiss the prisoner's petition for lack of subject matter jurisdiction. The trial court granted the motion and dismissed the petition. The prisoner has now appealed. We have determined that the trial court erred by concluding that it lacked subject matter jurisdiction to consider the prisoner's petition. Accordingly, we reverse and remand the case for further proceedings.
Sequatchie
Court of Appeals
Kenneth Hughes, et ux. v. Estate of Elizabeth Haynes M2002-01896-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Floyd Don Davis
This appeal involves a claim filed against an estate for recovery for personal services rendered by claimants, husband and wife, to the decedent. The probate court granted the claim. Estate appeals. We reverse.
Dept.of Children's Svcs. vs. D.R., et al E2000-01381-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: William Terry Denton
These parents of three minor children ("Children") were arrested in April 1998, while the Children were with them, for possession of a firearm, drug possession, and public intoxication. The State of Tennessee, Department of Children's Services ("DCS"), filed a Petition for Temporary Custody of the Children which was granted. Thereafter, DCS entered Plans of Care with the Juvenile Court with which the parents, D.R. ("Mother") and L.M.R. ("Father"), had agreed. The Children remained in foster care for eighteen months during which time the parents were to work toward completing the goals set forth in the Plans of Care so they could be reunited with the Children. In August 1999, DCS filed a Petition to Terminate Parental Rights. The Juvenile Court Referee heard this petition in October 1999, and granted it. The Juvenile Court Referee's Termination of Parental Rights and Final Decree of Guardianship was entered in April 2000 and confirmed by the Juvenile Court Judge in June 2001. Both Mother and Father appeal. We affirm.
Ben Doubleday vs. Larry Hargrove M2000-02648-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Tamra L. Smith
This is an action to recover the balance due on a contract for the sale of timber. The purchaser's defense was impossibility of performance, because the seller had allegedly destroyed access. The seller testified that the purchaser cut and removed 95 percent of the timber, while the purchaser said he removed only about 40 percent owing to lack of access. The trial judge awarded the seller a judgment for the balance owing less some off-sets not relevant here. We affirm.
Bedford
Court of Appeals
Lori Castle vs. Jeffrey Baker E2000-02772-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John S. Mclellan, III
These parties were divorced in May 1992. Custody of their daughter, Brittany, then 5 years old, was awarded to Mother pursuant to an Marital Dissolution Agreement [MDA] which obligated Father to pay $575.00 monthly support. About three months after the divorce was granted, the custodial care of Brittany was transferred to Father, by agreement of the parties and without recourse to the Court. In June 1998, Mother sought contempt liability against Father alleging that he was in arrears with his child support obligation in the amount of $40,800.00: at trial, the amount was stipulated to be $36,800.00. Father responded by filing a petition for change of custody, alleging that Brittany had resided with him for several years, a material change in circumstances. He also sought forgiveness of the arrearage. The Trial Court found a change in circumstances and awarded custody of Brittany to her father who was also credited with the monetary value of the necessities he furnished Brittany from August 1992 through February 1997. Mother appeals. We affirm.
Sullivan
Court of Appeals
Parks Properties, et al vs. Maury County, et al M1997-00235-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: William B. Cain
Parks Properties and Columbia Warehouses, Inc. have filed a petition pursuant to Tenn. R. App. P. 39 requesting a rehearing of this court's August, 17, 2001 opinion. We requested and have now received an answer to this petition on behalf of Maury County and Judy Langsdon. Parks Properties and Columbia Warehouses insist that our conclusion that they lacked a protectable property interest in constructing the two warehouses without installing the automatic required sprinkler systems is based on our "misunderstanding that the warehouses would have contained tobacco or other combustible products." They assert that "there was never any evidence before the trial court that the warehouses would be used to store tobacco or other combustible products." This argument misses the point. The lynchpin of our opinion is that the record contains no evidence (1) that the Parks family ever told any county official that tobacco and other combustible materials would not be stored in these warehouses and (2) that the Parks family never sought a waiver of the automatic sprinkler requirements under Section 402.4.1 exception
Maury
Court of Appeals
Dolores E. Rossello vs. Michael Magill, Commissioner M2001-00113-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Irvin H. Kilcrease, Jr.
The judgment of the Chancery Court is affirmed pursuant to Rule 10, Rules of the Court of Appeals.
Davidson
Court of Appeals
Tomkats Catering, Inc. vs. Ruth E. Johnson, Commissioner of Revenue, State of TN M2000-03107-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Carol L. Mccoy
This is a sales tax case. The tax period is from December 1, 1990 through January 31, 1994. During this period TomKats, a catering business, charged its customers a fixed, per unit price for food, but provided optional services for an additional charge, which was billed separately. The Commissioner ruled that such optional services were a "part of the sale," and assessed a tax deficiency which TomKats paid and filed this action for a refund which was unavailing. The judgment is reversed.
Davidson
Court of Appeals
Walter W. Carlen, Sr., et al vs. Ronald E. Jackson M2000-02564-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: John A. Turnbull
The defendant asserted a comparative fault defense to a tort claim against him arising from his operation of a truck. He attributed fault to General Motors Corporation and Carlen Motors Inc. the manufacturer and prospective seller, respectively, of the truck. The defendant did not respond timely to a request for admission and summary judgment was entered that the defendant could not assert the affirmative defense attributing fault to General Motors and Carlen Motors Inc.
Putnam
Court of Appeals
Charles David Killion vs. Johnny Huddleston M2000-02413-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Ellen Hobbs Lyle
This is an action for damages for negligent misrepresentation. The plaintiff invested $50,000.00 in Eureka Vacuum Cleaner Company at the advice and urging of the unlicensed defendant who was to receive a substantial commission. The investment was a scam. Recovery for the loss was allowed. We affirm.
Davidson
Court of Appeals
David Brown vs. Ruth Johnson, Commissioner, TN Dept. of Revenue M2000-02114-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: John W. Rollins
Taxpayer purchased baled straw from farmers which he sold to landscapers, sales tax free. A Notice of Assessment was served on the taxpayer for the sales tax, plus penalty and interest. After payments of these amounts taxpayer filed suit for refund, challenging the assessments. The trial judge found that the sales taxes were properly assessed, but that both interest and penalty should be waived. Both parties appeal. We hold that the taxpayer is liable for the tax together with penalty and interest.
Coffee
Court of Appeals
Pilgrim Emmanual Baptist Church vs. Albert Buckingham, et al M2000-02377-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Ellen Hobbs Lyle
The parties agreed to the consolidation of two cases for trial and appellate proceedings. The plaintiffs in each case sought broad injunctive relief to correct alleged irregularities in the affairs of the church. All named parties, plaintiffs and defendants, were enjoined from disturbing or disrupting any worship service or church meeting, and certain safeguards were placed on church funds and property. Thereafter, the church moved for summary judgment which was granted, thus effectively terminating the litigation. Mr. Buckingham appeals.
Davidson
Court of Appeals
Venelsia Stephens vs. Shelby Co. Govt. W2000-01353-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: D'Army Bailey
County employee sued county for on-the-job injury benefits resulting from carpel tunnel syndrome. Employee filed suit over one year after the county denied her claim for benefits. After a nonjury trial, the trial court dismissed plaintiff's case with prejudice as barred by the one-year statute of limitations. Employee appeals. We affirm.
Shelby
Court of Appeals
Darin Shaffer vs. Shelby Co. W2000-02215-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Robert L. Childers
This appeal involves an accident in which a mother and son were hit by an automobile. The mother received fatal injuries in the accident. The survivors brought an action against Shelby County for the wrongful death of the mother and for negligent infliction of emotional distress with respect to the son. A jury found Shelby County liable for $12,039,049.01. The award was reduced in accordance with the Governmental Tort Liability Act (the GTLA) to $260,000.00 plus discretionary costs of $5,434.55. The plaintiffs appealed the reduction of liability alleging that the GTLA violated the Tennessee Constitution and should be judicially abrogated. The plaintiffs further allege that even if the GTLA is upheld, liability should be capped at $350,000.00 as opposed to $260,000.00. Shelby County also raises several issues in this appeal. First, Shelby County alleges that it was performing a discretionary function, which immunizes it from liability. Shelby county also contends that the proof shows the mother to be at fault and fails to show that the son suffered a serious emotional injury. In addition, Shelby County argues that the verdicts were excessive and were tainted by inappropriate arguments made during the plaintiffs' closing. Finally, Shelby County alleges that the trial court erred by assessing discretionary costs, which caused the award to exceed the GTLA's statutory cap on damages. For the following reasons, we reverse the trial court's award of discretionary costs and affirm the trial court in all other respects.
Shelby
Court of Appeals
Chemical Residential vs. Donna Hodge W2000-02958-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Donald H. Allen
This case involves the negligent impairment of a security interest. Plaintiff Chemical Residential Mortgage Corporation held a note and deed of trust on the subject real property. Subsequently, defendant Commercial Credit, Inc., negligently executed and filed a release deed on the property. Later, defendant Southern Financial made a second loan to the debtor secured by the same property. After Chemical Residential realized that its deed had been released in error, it brought the instant declaratory judgment action against Southern Financial and Commercial Credit, seeking a declaration that its deed was senior to that of Southern Financial. Southern Financial filed a cross-claim against Commercial Credit for the impairment of its security interest. The trial court found in favor of Chemical Residential and Southern Financial against Commercial Credit, and held that Chemical Residential's deed was senior to that of Southern Financial. On the cross-claim, the trial court awarded Southern Financial damages against Commercial Credit in an amount equal to the total amount due on the secured note. Commercial Credit now appeals, arguing, inter alia, that the trial court's measure of damages was erroneous. We reverse on the issue of damages and remand for a redetermination of those damages.
