SecurAmerica Business Credit v. Karl Schledwitz, et al.
This is the second appeal involving liability on personal guaranties securing the debt of a transportation company. On remand after our first opinion, the trial court found that the transportation company and the lender, through the actions of its president, entered into a conspiracy to violate the Tennessee Consumer Protection Act and violated the duty of good faith and fair dealing, relieving the guarantors of their liability under the continuing guaranties. The trial court, however, declined to hold that the lender and transportation company committed fraud or that the sale of the transportation company from the guarantors to its current owner was a sham. We affirm the trial court’s rulings with regard to (1) the actions of the lender’s president being imputed to the lender; (2) that the sale of the transportation company was not a sham; (3) that no fraud was committed; and (4) that the guaranties at issue are continuing. We further hold that the trial court was entitled to consider both the underlying credit agreement and the guaranties in determining whether the duty of good faith was breached. However, we vacate the trial court’s judgment with regard to its findings of conspiracy, a violation of the Tennessee Consumer Protection Act, and breach of the duty of good faith. We further vacate the trial court’s judgment that the guarantors may avoid the obligations under the guaranties. We remand to the trial court for further findings of fact and conclusions of law on these issues. Affirmed in part, vacated in part, and remanded. |
Shelby | Court of Appeals | |
Mary Ann Layman v. Thomas Stuart Layman
In this divorce case, the trial court granted Mary Ann Layman (“Wife”) an absolute divorce from Thomas Stuart Layman (“Husband”), thereby ending the parties’ twenty-nine year marriage. Subsequently, the court divided the marital property and awarded Wife alimony in futuro and child support in a lump sum amount. Husband appeals. We reverse the trial court’s award of $63,200 in retroactive child support. The judgment is otherwise affirmed. |
McMinn | Court of Appeals | |
Cynthia L. Christian, et al. v. Ayers L.P. d/b/a/ MS. Lassie's Lodge
This is a premises liability case. An attendee at an event fell in the defendant’s parking lot and sustained injuries. The attendee and her husband filed suit against the defendant claiming negligence because the parking area had no lighting on the evening of the fall. The defendant filed a motion for summary judgment, asserting it: had no notice the outdoor lights were burned out; owed no duty to the attendee; and the attendee was more than fifty percent at fault for her injuries. The trial court determined the record contained insufficient evidence to establish that the defendant had notice the outside lights were not working. The other issues raised were dismissed as moot. The plaintiffs appeal. We reverse and remand for further proceedings. |
Campbell | Court of Appeals | |
Charles J. Chambers ex rel. Odis M. Chambers v. Bradley County, et al.
In this medical malpractice case, the defendants moved to dismiss the complaint with prejudice on the grounds that plaintiff failed to file, with his complaint, the affidavit of the person who mailed pre-suit notice to the defendants. The trial court, noting that plaintiff complied with Tenn. Code Ann. § 29-26-121 (Supp. 2013) in every respect except for filing the affidavit, and that he filed the affidavit shortly after the complaint, denied the motion to dismiss on the ground that plaintiff had substantially complied with the statute. We affirm the judgment of the trial court. |
Bradley | Court of Appeals | |
Linda F. Coffey et al. v. Tyler N. Hoffman et al.
The issue presented in this appeal is whether the plaintiffs’ uninsured motorist insurance carrier preserved its rights to a jury trial and subrogation interest under Tenn. Code Ann. § 56-7-1206 (2008). This statute allows an uninsured motorist insurer to “elect to decline binding arbitration and preserve its subrogation rights” under certain prescribed circumstances. Tenn. Code Ann. § 56-7-1206(k). The trial court held that the uninsured motorist insurance carrier failed to comply with a local circuit court rule that requires a response to a motion to be filed and served on the movant no later than 30 days after the motion is filed. Pursuant to that local rule, the trial court treated the plaintiffs’ motion to compel arbitration as “unopposed.” The trial court further held that the uninsured motorist insurance carrier “did not strictly comply with the requirement of T.C.A. § 56-7-1206 objecting to arbitration” and ordered the parties to submit to binding arbitration. We hold that the uninsured motorist insurance carrier complied with the statute, thereby preserving its rights to a jury trial and subrogation, and that the local rule does not operate to abrogate these rights. The judgment of the trial court is vacated and this case is remanded to the trial court for further proceedings. |
Hawkins | Court of Appeals | |
In Re Gabriel B. et al.
This is a termination of parental rights case, focusing on Gabriel B., Gracie B., and Zachary B., the minor children (“Children”) of Donna B. (“Mother”) and Richard B. (“Father”). The Children were taken into protective custody by the Tennessee Department of Children’s Services (“DCS”) on June 9, 2011, after they had been found in the care of an inappropriate caregiver while Mother was out of state. On April 19, 2012, DCS filed a petition to terminate the parental rights of Mother and Father. Father subsequently surrendered his parental rights to the Children and is not a party to this action. Following a bench trial held on November 9, 2012, and January 4, 2013, the trial court granted the petition upon its finding, by clear and convincing evidence, that (1) Mother had abandoned the Children by failing to provide a suitable home, (2) Mother had failed to substantially comply with the permanency plans, (3) the conditions causing the removal of the Children into protective custody persisted, and (4) Mother’s mental condition was impaired to the point of being unable to provide for the further care and supervision of the Children. The court further found, by clear and convincing evidence, that termination of Mother’s parental rights was in the Children’s best interest. Mother has appealed. Discerning no error, we affirm. |
Monroe | Court of Appeals | |
Rhonda Potter, et al v. William Dale Perrigan, M.D., et al.
This is a medical malpractice action. Plaintiffs timely filed a complaint after properly sending pre-suit notices to Defendants. After voluntarily dismissing the initial complaint, Plaintiffs filed a second complaint pursuant to the saving statute with an attached certificate of good faith and a copy of the original pre-suit notices. Defendants moved to dismiss the second complaint for failure to comply with the notice requirements set out in Tennessee Code Annotated section 29-26-121(a). The trial court agreed and dismissed the action. Plaintiffs appeal. We reverse the decision of the trial court. |
Cumberland | Court of Appeals | |
Jeremy Mitchell Jordan v. Donald Keeble, M.D. et al.
The plaintiff, a former state prison inmate, appeals the trial court’s dismissal of his health care liability action against the defendants. The trial court granted the motions to dismiss filed by the defendants who are medical personnel based upon, inter alia, the plaintiff’s failure to comply with the requirements of the Tennessee Health Care Liability Act. See Tenn. Code Ann. §§ 29-26-115 to -122 (Supp. 2013). The trial court also granted the motions to dismiss filed by all of the defendants upon finding that the plaintiff’s complaint contained insufficient factual allegations under Tennessee Rule of Civil Procedure 8 and, therefore, failed to state a claim upon which relief could be granted pursuant to Tennessee Rule of Civil Procedure 12.02(6). The plaintiff has appealed. Discerning no error regarding dismissal with prejudice pursuant to Tennessee Rule of Civil Procedure 12.02(6), we affirm. |
Knox | Court of Appeals | |
In Re: Guardianship of Minor Children of Lorenzen Wright
This is an appeal from a probate court order in a guardianship case. In a prior action involving the same parties, the circuit court established a trust to hold insurance proceeds due to Minor Children and appointed Mother trustee. Subsequently, the present case was initiated when Grandfather petitioned the probate court to be appointed guardian over separate pension funds due to Minor Children. Mother also sought to be appointed guardian over the pension funds initially, but she later withdrew her request. Despite Mother’s withdrawal, the probate court investigated Mother’s personal finances and became concerned with her management of the previously established trust. The probate court appointed a guardian ad litem to further investigate Mother’s management of the trust. We hold that the probate court acted beyond the scope of its jurisdiction in doing so and therefore vacate the court’s judgment in part and remand for further proceedings. |
Shelby | Court of Appeals | |
Helen Stewart v. Cadna Rubber Company
This is an employment discrimination case. The employment of the plaintiff employee was terminated in the course of a reduction in force. The plaintiff filed this lawsuit against the defendant employer alleging that she was singled out for termination in the reduction in force based on her age and/or race. The trial court granted summary judgment in favor of the employer. The trial court reasoned that the evidence submitted by the plaintiff was insufficient to create an issue of fact as to whether the employer singled her out for termination based on her age and/or race, and that the plaintiff’s evidence was insufficient to prove that the legitimate nondiscriminatory reason proffered by the employer for terminating the plaintiff’s employment was pretextual. The plaintiff now appeals. We reverse. The standard for summary judgment applicable in this case is the standard set out in Hannan and Gossett. Under the very high standard in those cases, the employer cannot negate an element of the plaintiff’s prima facie case merely by showing that the plaintiff did not submit sufficient evidence at the summary judgment stage; to obtain summary judgment under that standard, the employer must show that the plaintiff cannot establish this element of her claim at trial. Thus, we hold that the employer failed to meet this standard on any of the plaintiff’s claims of discrimination. |
Shelby | Court of Appeals | |
Eddie R. Gates v. Andrew S. Perry, et al.
This interlocutory appeal concerns the issue of whether the requirement of obtaining new process or recommencing an action in general sessions court is triggered for purposes of Tenn. Code Ann. § 16-15-710 by the failure to return unserved the prior process within 60 days as required by Tenn. Code Ann. § 16-15-902. Eddie R. Gates (“Gates”), alleging damages sustained in an automobile accident, sued Andrew S. Perry (“Perry”) in the General Sessions Court for Bradley County (“the General Sessions Court”). Gates’ suit was dismissed. On Gates’ appeal to the Circuit Court for Bradley County (“the Circuit Court”), Perry moved to dismiss, again alleging that the statute of limitations had run during the long gap between issuance and reissuance of process in the General Sessions Court action. The Circuit Court denied Perry’s motion, holding that the time bar did not operate because process was not returned unserved and, therefore, the statute of limitations never ran. We granted permission for this interlocutory appeal. We reverse the Circuit Court. |
Bradley | Court of Appeals | |
Joseph H. Johnston v. Davidson County Election Commission, et al.
Write-in candidate for election to the Council of the Metropolitan Government of Nashville and Davidson County appeals the dismissal of his challenge on constitutional grounds to the statute requiring that, fifty days before an election, write-in candidates for offices in the election submit a notice to the county election commission requesting that their votes be counted. Determining that the statute is constitutional as written and as applied, we affirm the decision of the trial court. |
Davidson | Court of Appeals | |
Bradley Wells v. Chattanooga Bakery, Inc., et al
Plaintiff brought suit against defendants alleging the unlawful use of his image and likeness and asserting statutory claims for violation of the Tennessee Personal Rights Protection Act and the Tennessee Consumer Protection Act, and common law claims for unjust enrichment, accounting, and conversion. Upon defendants’ motion, the trial court dismissed the complaint for lack of subject matter jurisdiction based on complete preemption by the Copyright Act. We affirm. |
Davidson | Court of Appeals | |
In Re Jordan H.
In this child support enforcement action, the trial court granted the State, on behalf of the minor child’s mother, an arrearage award of $16,753.49 against the child’s father. The trial court found that the father’s sole source of income was his federal Supplemental Security Income (“SSI”) and ordered the father to pay his entire lump-sum SSI payment to Child Support Enforcement. Father appeals. We affirm the trial court’s judgment only as to the amount of the arrearage. We reverse the portion of the trial court’s judgment attaching the father’s SSI benefits and remand for correction of the judgment. |
Cocke | Court of Appeals | |
Marsha Hicks v. Jennifer Prahl
This negligence action arose from an automobile accident occurring on October 8, 2009, in Knox County. The plaintiff filed the instant lawsuit on September 7, 2010, alleging that the defendant was negligent in the operation of her vehicle, causing the rear-end collision. A jury trial was held November 8-13, 2012, at the conclusion of which the jury returned a verdict in favor of the defendant. The plaintiff filed a motion for new trial and a supplemental motion for new trial. The trial court denied these motions, determining that the evidence preponderated in favor of the jury’s verdict. The plaintiff timely appealed. Discerning no error, we affirm. |
Knox | Court of Appeals | |
James Allen Austin v. Marely Torres
The divorced father of an seven year old child filed a petition to transfer custody of the child from the mother to himself. The trial court heard expert proof that the child suffered from a rare genetic disorder that can cause grave neurological consequences if the child’s diet is not strictly controlled. The mother’s testimony indicated that she was unconvinced that the child had a disorder and that she was unwilling to adjust the child’s diet to meet his medical needs. The court found that there had been a material change of circumstances and that it was in the best interest of the child that custody be transferred to the father, with the mother’s visitation limited to fifty days per year. The mother argues on appeal that the trial court’s order should be reversed because it committed a number of procedural errors in the course of the custody proceedings. We affirm the trial court. |
Davidson | Court of Appeals | |
In Re: Anna L. J.
Husband and wife in dependent and neglect proceeding who were each held in criminal contempt for violating an order that they have no contact with other parties to the proceeding appeal their convictions, the sentences imposed, and other rulings of the trial court. We affirm the holding that the husband was in contempt, vacate the sentence imposed and remand the case for resentencing. We affirm the holding that the wife was in indirect contempt and the sentence imposed; we reverse the holding that wife was in direct contempt. In all other respects we affirm the judgment of the trial court. |
Williamson | Court of Appeals | |
In Re: Anna L. J. - Concurring
I write separately to emphasize the point that trial courts should not automatically impose the maximum sentence when consecutive sentencing is available; this is due in part to the recognition that “not every contemptuous act, or combination of contemptuous acts, justifies the imposition of a maximum sentence, particularly when consecutive sentencing is in play.” Simpkins v. Simpkins, 374 S.W.3d 413, 422 (Tenn. Ct. App. 2012). Imposition of the maximum sentence to be served consecutively is merely an option if the facts of the case justify the absolute maximum sentence. Further, there is a presumption in favor of concurrent sentencing as distinguished from consecutive sentencing. Id. at 424 (citing State v. Taylor, 739 S.W.2d 227, 230 (Tenn. 1987) (holding that consecutive sentences should not routinely be imposed in criminal cases and the aggregate maximum of consecutive terms must be reasonably related to the severity of the offenses involved)). |
Williamson | Court of Appeals | |
Five Oaks Golf & Country Club, Inc. v. Reagan Farr, as Commissioner of Revenue of the State of Tennessee
A taxpayer sued for a tax refund based on two issues. In response to the commissioner’s motion for summary judgment, the taxpayer conceded one issue, which constituted about 70% of the amount contested, and moved for summary judgment on the other issue. The trial court ruled for the commissioner on the conceded issue and for the taxpayer on the other issue. Both sides sought attorney fees and expenses. The trial court determined that the taxpayer was the prevailing party. The commissioner appealed. Finding that there is no prevailing party, we reverse the trial court. |
Wilson | Court of Appeals | |
Tonie V. Peterson v. Glenn E. Lepard, et al.
This case arises from the dismissal of the Appellant’s lawsuit in the Circuit Court of Shelby County for failure to timely perfect her appeal from General Sessions Court. Appellant filed her notice of appeal with the 24-hour General Sessions Criminal Clerk’s Office, but did not pay costs or bond because the 24-hour clerk’s office does not accept any payments for civil matters. As a result, Appellant’s bond was not paid until the eleventh day after the General Sessions Court’s judgment was entered, and was therefore outside the ten-day filing period. Tenn. Code Ann. § 27-5-108. Consequently, the trial court dismissed Appellant’s appeal for lack of jurisdiction. Discerning no error, we affirm and remand. |
Shelby | Court of Appeals | |
Tonie V. Peterson v. Glenn E. Lepard, et al. - Concurring Opinion
Because the requirements of Tennessee Code Annotated section 27-5-103 were clearly not met in this case, I concur fully in the result reached in this case. However, I write separately again to express my disagreement with this Court’s holding in Bernatsky v. Designer Baths & Kitchens, L.L.C., No. W2012-00803-COA-R3, 2013 WL 593911 (Tenn. Ct. App. Feb. 15, 2013) namely, that the statutory requirement of giving “bond with good security” for “the cost of the cause on appeal” is not satisfied by paying an initial filing fee. I find the statute unambiguous, and therefore, there is no need to attempt to discern legislative intent based upon the less than compelling legislative history of various statutory schemes relied upon by the majority in Bernatsky. |
Shelby | Court of Appeals | |
In the Matter of: B.M., C.M., and C.R.
This is an interlocutory appeal involving the trial court’s subject matter jurisdiction. The juvenile court entered an order declaring three children dependent and neglected; the order included a no-contact provision as to the father of one of the children. The mother appealed the juvenile court’s decision to the circuit court. After she filed the appeal to the circuit court, the father of the other two children filed a contempt petition in the circuit court asserting that the mother and the other father violated the no-contact provision in the juvenile court’s order. The mother filed a motion to dismiss, alleging that the circuit court was without subject matter jurisdiction to hear a contempt petition arising out of the juvenile court’s order. The circuit court denied the mother’s motion to dismiss but did not reach the merits of the contempt petition. The appellate court granted the mother permission for an extraordinary appeal under Tenn. R. App. P. 10, to address only the circuit court’s subject matter jurisdiction to adjudicate the petitioner father’s contempt petition. After permission for the extraordinary appeal was granted, the circuit court held an evidentiary hearing and determined that the petitioner father’s two children were not dependent and neglected. The circuit court then vacated the juvenile court’s order as to those two children, including the no-contact provision. Under the circumstances, we find that the issue presented on appeal is no longer justiciable and that this Court improvidently granted permission for the Rule 10 appeal. Accordingly, we decline to address the issue presented and dismiss the appeal. |
Shelby | Court of Appeals | |
In Re Jalin M.B., et al
This is an appeal from the trial court’s final order modifying a custody arrangement that designated Mother as the primary residential parent and awarded Father limited visitation. Father filed a petition to modify, claiming that a material change in circumstances necessitated a change in the parenting plan. Following a hearing, the trial court designated Father as the primary residential parent, awarded the Parents equal time with the Children, and modified Father’s child support obligation. Mother appeals. We affirm the trial court’s custody determination but reverse its child support determination. The case is remanded for further proceedings consistent with this opinion. |
Knox | Court of Appeals | |
Melissa L. Blackshear (Thompson) v. Stephen D. Blackshear
This appeal arises from the parties’ post-divorce issues. The father moved to modify his child support obligation because of a significant variance in his income. Following a hearing, the trial court modified the father’s child support obligation from $2,000 a month to $73 per month, awarded a $21,124 judgment against the mother for overpayment, and awarded the father attorneys’s fees in the amount of $10,000. The mother appeals. We vacate and remand. |
Hamilton | Court of Appeals | |
In Re Kaylyn M.R.
This is a termination of parental rights case in which the Tennessee Department of Children’s Services filed a petition to terminate the parental rights of Father to the Child. Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of Father’s parental rights on the statutory grounds of persistence of conditions, abandonment for failure to provide a suitable home, and abandonment for wanton disregard of the Child’s welfare. The court likewise found that termination of Father’s parental rights was in the Child’s best interest. Father appeals. We affirm the decision of the trial court. |
Jefferson | Court of Appeals |
