Amanda Dawn Alderidge v. Lynn Vernon Alderidge, Jr.
In this divorce proceeding, the appellant contends the trial court erred by granting the divorce to his wife and designating her as the primary residential parent of their minor child. Finding no error, we affirm. |
Lawrence | Court of Appeals | |
John Anthony Melton v. Jennifer Shannon Profitt (Melton) Johnson
At the time the parties were divorced, they essentially agreed to a joint custodial arrangement for their two children. Subsequently, the father filed a Petition alleging change of circumstances and for primary custody of the children. The wife filed a Counter-petition for primary custody. The Trial Court heard evidence and awarded primary custody to the father. The mother has appealed. We affirm. |
Humphreys | Court of Appeals | |
Maggie Lee Banks v. Jack C. Sanford, M.D., et al.
After receiving a routine hormone injection, the plaintiff patient experienced pain, facial swelling, numbness, and blindness. The plaintiff filed a complaint against the clinic, its employee physician, and the employer of the nurse who had administered the injection, alleging medical malpractice. The defendant clinic and physician filed a motion for summary judgment, and attached the expert affidavit of the defendant physician in which he stated that all of the defendants had treated the plaintiff in accordance with the relevant standard of care and according to their best medical judgment. After the physician’s deposition was taken, the plaintiff filed a motion for a determination by the trial court that his previously filed affidavit had been filed in bad faith, citing alleged inconsistencies with his deposition testimony and discovery admissions. The nurse’s employer filed a motion for summary judgment that relied upon the physician’s deposition testimony that the nurse had acted in accordance with the relevant standard of care and that the actions of the nurse had not caused the plaintiff’s injuries. A hearing was held at which the trial court denied the plaintiff’s motion to find that the physician’s affidavit had been made in bad faith, and the trial court allowed the plaintiff additional time in which to produce expert proof of causation. After the plaintiff was unable to obtain expert proof, the trial court ultimately granted the defendants’ motions for summary judgment. The plaintiff filed a timely notice of appeal. Finding no error, we affirm the judgment of the trial court. |
Shelby | Court of Appeals | |
Eric Todd Jackson v. State of Tennessee
Appellant, who was the defendant in a previous criminal proceeding, filed a Writ of Mandamus seeking to obtain a refund of the bond he posted in the criminal case. The trial court dismissed the petition. Finding no error, we affirm. |
Montgomery | Court of Appeals | |
In Re: Estate of W. Garnett Ladd, Sr., W. Garnett Ladd, III, et al. v. Robert C. Marks
The matters at issue pertain to the fee awarded a Co-Executor of an estate. The Co-Executor appeals contending he was entitled to a contractual fee equal to five percent of the gross estate based on an oral agreement with the ninety-four year old widow of the testator who served as his co-executor. The Special Master and Chancellor made concurrent findings that the appellant had failed to properly administer the estate. They also found that his claimed excuse, that he was acting according to the wishes of his ninety-four year old Co-Executrix, did not relieve him of his affirmative fiduciary duties as a personal representative. The Chancellor awarded him a fee of $25,000 for his services as Co-Executor. We have concluded he is entitled to no fee for his services. |
Montgomery | Court of Appeals | |
Linda Bush v. Adworks Advertising Outdoor, LLC
This is a property case involving a restrictive covenant. The homeowners in a subdivision entered into a restrictive covenant agreement with the original developer of a tract of land directly across the highway from the residential subdivision. The restrictive covenant prohibits the use of the developer’s property for “billboards . . . not in place on December 1, 1995.” On December 1, 1995, three billboard structures existed on the burdened property. Years later, the defendant billboard company purchased easements in the three billboard sites and the existing billboard structures were removed. The defendant billboard company then erected three new billboard structures. Subsequently, the plaintiff homeowner in the subdivision filed the instant lawsuit for injunctive and declaratory relief, alleging that the defendant billboard company’s placement of new billboard structures on the burdened property constituted a violation of the restrictive covenant. The parties filed cross-motions for summary judgment. The trial court granted summary judgment in favor of the defendant billboard company, and the plaintiff homeowner now appeals. We affirm, finding that the language of the restrictive covenant is unambiguous, and that it restricts only the use of the burdened property, limiting the use to the number of billboards on the property as of December 1, 1995. |
Shelby | Court of Appeals | |
David Holt, et al. v. Barbara Pyles, et al. - Concurring and Dissenting
I concur in the majority’s conclusion that the policy is not ambiguous and does not include excess coverage for injuries caused by uninsured motorists. I disagree, however, with the majority’s resolution of the estoppel claim because I do not agree that the requirements for summary judgment for the insurer on that claim were met. To properly support its motion, the moving party must either affirmatively negate an essential element of the non-moving party’s claim or conclusively establish an affirmative defense. If the moving party fails to negate a claimed basis for the suit, the non-moving party’s burden to produce evidence establishing the existence of a genuine issue for trial is not triggered and the motion for summary judgment must fail. If the moving party successfully negates a claimed basis for the action, the non-moving party may not simply rest upon the pleadings, but must offer proof to establish the existence of the essential elements of the claim. Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 88-89 (Tenn. 2000) (citations omitted). Thus, if, but only if, the moving party presents evidence sufficient to justify grant of the motion if the facts remain uncontested, the nonmoving party is required to come forward with some significant probative evidence which makes it necessary to resolve a factual dispute at trial. Where the moving party satisfactorily challenges the nonmoving party’s ability to prove an essential element of its claim, the nonmoving party has the burden of pointing out, rehabilitating, or providing new evidence to create a factual dispute as to that element. Staples, 15 S.W.3d at 88-89; Rains v. Bend of the A defendant moving for summary judgment must, in its filings supporting the motion, either affirmatively negate an essential element of the non-moving party’s claim or conclusively establish an affirmative defense. Blair v. West Town Mall, 130 S.W.2d 761, 767 (Tenn. 2004); Staples, 105 S.W.3d at 88-89. Only if the moving party presents evidence sufficient to justify grant of the motion if the facts remain uncontested is the nonmoving party required to come forward with some significant probative evidence which makes it necessary to resolve a factual dispute at trial. A defendant moving for summary judgment cannot rely solely on omissions in the plaintiff’s proof. McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998) (holding that the plaintiff’s inability to show whether his food poisoning was caused by defendant’s chicken or by food eaten at breakfast did not suffice to affirmatively negate the causation element of his negligence claim). Mere assertions that the non-moving party has produced no evidence do not suffice to entitle the moving party to summary judgment. Blair, 130 S.W.3d at 767-68; Staples, 15 S.W.3d at 88-89; Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998); McCarley, 960 S.W.2d at 588; Arnett v. Domino’s Pizza, 124 S.W.3d 529, 532 (Tenn. Ct. App. 2003). I cannot read the “New Policy Coverage Summary” as putting a reasonable person on notice that the “Optional Excess Protection” provision does not apply to the uninsured motorist coverage. While the relationship between the excess protection coverage and the uninsured motorist coverage is made clear in the lengthy policy itself, specifically the Optional Excess Liability Coverage endorsement or form, nothing in Mr. Holt’s affidavit indicates he received that form or the entire policy before the accident. His affidavit refers only to the policy summary. Apparently, Encompass did not file an affidavit stating that it had provided the complete policy to Mr. Holt. In any event, I believe that Mr. Holt’s affidavit raises sufficient questions about misrepresentation by the agent as to his protection under the excess coverage provision and his reasonable reliance on those representations to preclude summary judgment. [A] representation of fact made to a party who relies thereon with the right to so rely may not be denied . . . if such denial would result in injury or damage to the relying party. Negligent silence . . . [or] conduct which . . . in fact mislead will work an estoppel notwithstanding there was no intention to do so. Cincinnati Ins. Co. v. Avery, 914 F.2d 255, 1990 WL 132245, at *5 (6th Cir. 1990) (citations omitted) (summarizing Tennessee law). Questions of reasonable reliance and misrepresentation are fact specific. I believe Mr. Holt has testified to sufficient facts to present a question for the fact finder. Encompass has not negated an essential element of the estoppel claim and, therefore, is not entitled to summary judgment. |
Davidson | Court of Appeals | |
David Holt, et al. v. Barbara Pyles, et al. and David Holt, et al. v. State of Tennessee
This case concerns a motor vehicle accident in which serious injuries were sustained. The insured believed that his insurance policy provided excess coverage if he were to be involved in an accident with an uninsured or underinsured motorist. In forming this belief, he relied upon statements by the insurance agent and the summary pages of his policy. Following the accident, the insurance company denied that the insured maintained excess protection under his uninsured or underinsured motorist coverage, citing an exclusionary endorsement in the policy. The insured alleged that the policy was ambiguous. The trial court granted the insurance company’s Motion For Summary Judgment, ruling that the policy was not ambiguous and that the insured’s affidavit was insufficient to create a genuine issue of material fact as to the representations made by the insurance agent. The judgment of the trial court is affirmed. |
Davidson | Court of Appeals | |
Elaine M. and Larry J. Larson v. Tommy K. Halliburton
Grandparents filed petition for contempt against Father for willfully denying Grandparents their court-ordered summer visitation and weekend visitation with grandchildren. Grandparents also requested a mental evaluation and counseling for both Father and the minor children. The trial court found Father in criminal contempt and ordered that the eldest child, B.H., undergo counseling. Father appeals arguing that the trial court erred in (1) holding him in criminal contempt of court and entering sanctions against him; and (2) ordering B.H. to undergo counseling. The judgment of the trial court is vacated in part, affirmed in part and remanded. |
Smith | Court of Appeals | |
Girtman & Associates, Inc. v. Stephen St. Amour, et al.
A commercial dealer in doors and associated hardware sued a former employee for breach of a non-compete agreement. The dealer asked the court to award it either injunctive relief or liquidated damages in the amount of $321,500. After a bench trial the trial court concluded that the non-compete agreement was unenforceable under the circumstances and dismissed the claim for liquidated damages. The court did, however, award the plaintiff nominal damages of $200 on its claim of unfair competition based on use of a proprietary form, as well as punitive damages of $3,000 on the same claim. The dealer appealed. We affirm the trial court. |
Davidson | Court of Appeals | |
Joseph C. Curtsinger, Jr. M.D. v. HCA, Inc.
Davidson County- Surgeon filed action against hospital and other related persons and entities seeking injunctive relief and monetary damages for the allegedly improper revocation of his hospital privileges and the false reporting of such to the State Medical Board and the National Practitioner Data Bank. The trial court granted Defendants partial summary judgment on all monetary claims asserted by surgeon pursuant to the Health Care Quality Improvement Act (HCQIA) and the Tennessee Peer Review Law. Having found that surgeon failed to show by a preponderance of the evidence that Defendants did not satisfy the four prong test for immunity provided under HCQIA, we affirm the decision of the trial court in all respects. |
Davidson | Court of Appeals | |
James Carson v. Waste Connections of Tennessee, Inc.
This is an appeal of a damage award. The plaintiff owned a house with a detached carport. A tenant in the house had agreed to “clean up” the house and lot; to do so, he rented on-site dumpsters from the defendant waste removal company. During the delivery of a dumpster, the defendant’s driver backed the delivery truck into one of the four columns supporting the carport structure. The carport partially collapsed. The plaintiff homeowner filed a lawsuit against the defendant waste removal company, alleging negligence and seeking damages. Prior to trial, liability was conceded; therefore, the primary issue at trial was the amount of damages. There was disputed testimony on the condition of the roof structure of the carport before the defendant’s driver hit it. After the trial, the trial court found that the carport did not have a “roof” at the time of the accident and determined that the cost of a new roof was $2,000. Deducting the cost of the “roof,” the trial court awarded damages in the amount of $20,000. The defendant waste removal company now appeals, arguing that the trial court erred in awarding damages or, in the alternative, in its calculation of damages. Finding that complete justice cannot be had by reason of a defect in the record, we remand the case for further proceedings in accordance with Tennessee Code Annotated § 27-3-128. |
Shelby | Court of Appeals | |
Jason Little v. Eastgate of Jackson, LLC d/b/a Eastgate Discount Beer & Tobacco
This is a retaliatory discharge case. The plaintiff was an at-will employee of the defendant store. While at work, the plaintiff witnessed a woman across the street from the store being physically assaulted by an unidentified man. The plaintiff employee took a baseball bat from under the work counter, left the work premises, and yelled and gestured at the assailant with the bat, causing him to leave the scene. The plaintiff then brought the woman back to the store, where the police were called. Two days later, the defendant store terminated the plaintiff’s employment because he had left the work premises to aid the assault victim. The plaintiff employee then sued the defendant, asserting that his termination violated Tennessee public policy. The defendant filed a motion to dismiss the complaint on its face, arguing that the termination did not violate a clearly established public policy of the State of Tennessee. The trial court denied the defendant’s motion to dismiss, determining that the complaint stated a valid claim for retaliatory discharge. The defendant was granted permission to file this interlocutory appeal by the trial court and by this Court. We affirm, finding that the complaint states a claim for retaliatory discharge in violation of a clear public policy of the State of Tennessee. |
Madison | Court of Appeals | |
Douglas McPherson v. Shea Ear Clinic, et al.
This case involves an ear clinic, a patient, and his physician. The patient did not have health insurance, but he was enrolled in a type of discount plan that contracts with healthcare providers to secure reduced rates on medical services for the plan’s members. The patient scheduled a treatment with the ear clinic, and he believed that the clinic and his physician participated in the discount plan. The patient underwent pre-surgery testing before learning that neither the clinic nor the physician accepted the discount plan. The patient refused to pay full price for the treatment, and it was never performed. However, the patient was billed for the pre-surgery testing. The patient filed suit against the clinic and his physician for breach of contract, but the trial court dismissed his complaint for failure to state a claim. The patient appealed to this Court, and we reversed. We also instructed the trial court to address the patient’s concerns that the court had not accommodated his hearing disability as required by the Americans with Disabilities Act. On remand, the Tennessee Supreme Court assigned a senior judge to preside over the case, and it appears that no oral proceedings took place thereafter. However, the patient attempted to join Shelby County, various county officials, and officers of the court as defendants, claiming that he had been damaged by the county and court’s failure to accommodate his disability. The patient also amended his complaint to add claims for medical malpractice and fraud against the clinic and his physician. The trial court denied the patient’s petition for joinder of the claims against the additional defendants. The court granted summary judgment to the clinic and physician on the breach of contract and medical malpractice claims, and the claim for fraud was dismissed for failure to state a cause of action. For the following reasons, we affirm. |
Shelby | Court of Appeals | |
State of Tennessee, Ex Rel. Melinda Robinson v. Jessie Glenn, Jr.
Appellant challenges trial court’s rescission of a voluntary acknowledgment of paternity (“VAP”) and termination of child support. We reverse. |
Gibson | Court of Appeals | |
In Re J.C.J. and J.E.J.
The trial court terminated the parental rights of E.S.J. (“Father”) with respect to his minor children, J.C.J. (DOB: April 30, 2003) and J.E.J. (DOB: May 4, 2002) (collectively “the children”), upon finding, by clear and convincing evidence, that grounds for termination existed and that termination was in the best interest of the children. The court awarded the maternal grandparents temporary custody of the children. Father appeals. We affirm. |
Jefferson | Court of Appeals | |
In Re: Estate of Mary Gertrude Ralph, deceased. Patricia Butler, Co-Executor of the Estate of Mary Gertrude Ralph v. Wayne Ralph
This is a will contest. The decedent was an 89-year-old woman with eight grown children. In May 2004, the decedent was diagnosed with senile dementia. Shortly thereafter, the trial court established a conservatorship for the decedent. On August 2, 2004, the decedent executed a will that divided her estate equally among her children. After the decedent died in 2005, the will was submitted for probate. One of the decedent’s sons contested the August 2004 will, asserting that the decedent lacked testamentary capacity when it was executed, and submitted for probate an earlier will whose terms favored him and disinherited three of the children. After a bench trial, the trial court found that the decedent had the mental capacity to execute the August 2, 2004 will and admitted it for probate. The will contestant now appeals, arguing that the trial court erred in placing the burden of proving testamentary capacity on him instead of placing it on the will’s proponent, and that the trial court also erred in finding that the decedent had testamentary capacity to execute the August 2, 2004 will. We affirm, finding that the issue turns primarily on the trial court’s assessment of the credibility of the witnesses and that the evidence preponderates in favor of the trial court’s finding that the decedent had testamentary capacity to execute the August 2, 2004 will. |
Tipton | Court of Appeals | |
City of Memphis v. The Civil Service Commission of The City of Memphis and Richard Lindsey
This appeal involves the termination of a police officer’s employment with the Memphis Police Department. The officer appealed his termination to the Civil Service Commission of the City of Memphis (“the Commission”). The Commission found that the City of Memphis (“the City”) had not shown that termination was reasonable, and it ordered that Officer Lindsey be reinstated with full back pay and benefits. The chancery court affirmed the Commission’s decision. For the following reasons, we reverse and uphold the City’s decision to terminate the officer. |
Shelby | Court of Appeals | |
Kenneth B. White v. William Bacon, M.D., et al.
Inmate filed medical malpractice action against hospital for the allegedly negligent performance of his surgery and the failure to order appropriate post-operative treatment instructions. Hospital filed motion for summary judgment, alleging that it was an improper party to the suit because it was not a legal entity capable of being sued. The trial court granted the motion and inmate appeals. We affirm the decision of the trial court, finding that (1) hospital is not a legal entity capable of being sued; and (2) the trial court did not abuse its discretion by allowing hospital to reset its motion for summary judgment. |
Davidson | Court of Appeals | |
Crystal Capitol, LLC v. Katharine McManus Barber - Dissenting
I regret that I cannot concur with the court’s opinion in this case. Based on the law, I cannot conclude, as the court has done, that the trial court abused its discretion by denying Ms. McManus’s tardy Tenn. R. Civ. P. 60.02 motion to set aside the properly granted default judgment. |
Davidson | Court of Appeals | |
Crystal Capitol, LLC v. Katharine McManus Barber
The trial court refused to set aside a default judgment based upon the defendant’s delay in filing a motion to set aside. Because the defendant promptly notified the court that she had a meritorious defense, because the only evidence in the record shows the defendant did not willfully ignore the action against her, because the plaintiff has failed to allege or show any prejudice that would result from setting aside the judgment, and because relief should be granted where there is any reasonable doubt that the judgment by default should be set aside, we reverse. |
Davidson | Court of Appeals | |
Daniel Bradshaw v. Chattanooga Railcar Services, LLV, and Kingsport Rail Car Services, LLC
Plaintiff sued corporate defendants alleging that defendants failed to make proper distribution to shareholders under the operating agreements of each company. The Trial Court held that plaintiff received cash distributions from one of the companies or from KRS sufficient to pay his income tax liability under the terms of the operating agreement, but no distribution was made by CRS. On appeal, plaintiff argues that CRS, a separate entity from KRS, was required under the operating agreement to distribute to the plaintiff funds sufficient to pay his tax liability, since distributions were made to other members. Under the plain language of the agreement, we agree that plaintiff was due a distribution and we remand for the Trial Court to determine the proper amount. |
Hamilton | Court of Appeals | |
Robert J. Denley Co., Inc. v. Neal Smith Construction Company, Inc., et al.
The parties to a construction contract dispute the enforceability of its arbitration provision. The trial court refused to enforce the arbitration provision. The construction company appealed. The developer argues that the arbitration provision is unenforceable because it did not assent to arbitration, or alternatively, the arbitration provision was induced by fraud or unconscionable. The developer also claims that the defendants waived their right to arbitrate, and that they lack standing to enforce the right to arbitrate. For the following reasons, we reverse the decision of the chancery court and remand for entry of an order compelling arbitration. |
Madison | Court of Appeals | |
Tri-State Home Improvement v. Marilyn Starks
The plaintiff contractor filed a complaint in Shelby County General Sessions Civil Court against the defendant for a debt owed for various house repairs performed according to a service contract. The case was appealed to the Shelby County Circuit Court. Discovery was conducted, and the defendant filed a motion for leave to file a counter-complaint, which the trial court granted. In her countercomplaint, the defendant alleged that the contractor had not fulfilled the terms of the contract within the specified time period, that the contractor had failed to make repairs in compliance with local building codes as provided by the contract, and that the contractor had failed to perform repairs in a workmanlike manner. A bench trial was held, and the trial court found that the defendant was entitled to offset the original contract price of $14,981 by $5,500, and it entered judgment in favor of the contractor for $9,481 representing the remaining contract price. The trial court denied the contractor any award of attorney’s fees, and it assessed court costs against the defendant. The defendant appealed to this Court. We affirm in part, reverse in part, and remand. |
Shelby | Court of Appeals | |
O'Rane M. Cornish, Sr. v. The Home Depot, Incorporated
This case arises from the trial court’s grant of summary judgment in favor of Defendant/Appellee on a malicious prosecution complaint filed by Plaintiff/Appellant. Defendant/Appellee certified that it mailed copies of its filings, including its motion for summary judgment, to an incorrect address for Plaintiff/Appellant. Under Tenn. R. Civ. P. 5.02, if by mail, service must be made to the last known address of the party. Because Defendant/Appellee mailed its notice to an incorrect address, Plaintiff/Appellant was not properly noticed. We reverse and remand. |
Shelby | Court of Appeals |
