Deidra Kay Minor v. Melvin Richard Nichols
This appeal involves the interpretation of a marital dissolution agreement. In the parties’ divorce, the wife was awarded the marital home and the associated debt on the home. In the parties’ marital dissolution agreement, the husband was required to pay alimony in an amount that covered half of the wife’s monthly mortgage payments. The alimony payments were to be made for fifteen years or until the mortgage on the marital home was “paid off in full.” The husband stopped making his alimony payments and the wife filed a contempt petition against him. While the contempt petition was pending, the wife fell behind on her mortgage payments and the house was sold in foreclosure. The husband then filed a petition to terminate his alimony obligation. After a hearing on both petitions, the trial court held the husband’s failure to pay alimony constituted willful contempt of court. Interpreting the marital dissolution agreement, however, the trial court also held that the husband’s alimony obligation ended when the marital home was sold in foreclosure, because at that point the mortgage was “paid off in full.” The wife now appeals. We decline to interpret the parties’ marital dissolution agreement in a manner that would terminate the husband’s alimony obligation if the foreclosure resulted from his contemptuous failure to pay alimony to the wife. Accordingly, we vacate the trial court’s decision and remand for further proceedings. |
Shelby | Court of Appeals | |
Victor R. Peterson v. Kathleen A. Peterson
This is the second time this divorce case has been before this Court. Victor R. Peterson (“Husband”) filed the first appeal. We remanded the case to the trial court because we were “unable to determine what property was awarded to [Kathleen A. Peterson (“Wife”)] as . . . equitable division of property and what property was awarded as alimony in solido.” Peterson, 2012 WL 1413890 at *3. On remand, the trial court classified the parties’ property, valued all of the marital property except for some miscellaneous personal property, decreed a division of the marital property, and awarded Wife $10,000 in alimony in solido. Wife appeals. She argues that the division of marital property is not equitable and that the alimony award is inadequate. We affirm. |
Morgan | Court of Appeals | |
Rock Ivy Holding, LLC v. RC Properties, LLC et al
This multi-faceted business dispute, which arises in principal part from the real estate collapse of 2008, involves five limited liability companies, eight individuals who are either members or officers of the respective companies, 530 acres of undeveloped real estate, and $7 million of secured notes that were personally guaranteed by six of the individuals. Over the course of two years, SunTrust Bank, the holder of the notes, agreed to extensions of the original maturity date; a final extension was granted until August 7, 2008. A call for capital contributions was approved but it produced insufficient funds to payoff the debt.Thereafter, two of the individuals, one of whom was the president of Rock Creek, and both of whom personally guaranteed a portion of the debt, formed another entity which then acquired the notes from the bank. Rock Creek Development, LLC (“Rock Creek”), which owned the real estate, then agreed to sell a substantial portion of its property to pay off the balance owing on the notes. In an attempt to stop the sale, Rock Ivy Holding, LLC (“Rock Ivy”), one of three members of Rock Creek, filed this derivative action for itself and on behalf of Rock Creek against Rock Creek’s members: RC Properties, LLC; Linked, LLC; two officers of Rock Creek; and several individuals who were members of the defendant companies. The complaint alleged, inter alia, various conflicts of interests by the individual defendants and various breaches of statutory and contractual duties by members and/or officers. Pursuant to an agreed order, the sale proceeded, the net proceeds were held in the registry of the court, and the remaining claims went to trial. After eights days of a bench trial, the defendants moved to dismiss the complaint pursuant to Tenn. R. Civ. P. 41.02 at the close of the plaintiff’s case-in-chief.The trial court granted the motion and dismissed all of the plaintiff’s claims. Thereafter, several defendants filed various motions to recover their respective attorneys’ fees and expenses. Some of the motions were based on Tenn.Code Ann.§ 48-249804, which pertains to derivative actions, and others were based on indemnification provisions in Rock Creek’s Operating Agreement. The trial court granted some of the fee requests and denied others. In this appeal, Rock Ivychallenges the dismissal of its claims and the assessment of attorneys’ fees.Two individual defendants appeal the denial of their claims for attorneys’ fees. The holder of the notes appeals the denial of its claim for “default interest” and penalties. We affirm the trial court in all respects except for the trial court denying the claim for default interest on the notes. We have concluded that the holder of the notes is entitled to recover default interest from the time the notes were declared to be in default. Accordingly, this issue is remanded for further proceedings. |
Davidson | Court of Appeals | |
Marty Nix v. Tennessee Civil Service Commission
This administrative appeal arises from the termination of a state trooperfrom his employment with the Tennessee Department of Safety for filing a meritless sexual harassment claim against a fellow employee. Finding substantial and material evidence in support of the decision to terminate the trooper, we affirm. |
Davidson | Court of Appeals | |
In Re: Jeena P., et al.
Mother challenges the termination of her parental rights for failure to support. We find no need to address this issue because mother did not appeal the trial court’s findings of several other grounds for termination. Mother also disputes the trial court’s finding by clear and convincing evidence that termination is in the best interest of the children. We affirm the trial court. |
Montgomery | Court of Appeals | |
Clint Dewayne Graham v. Nycole Alexandria Vaughn
The father of a nine year old girl filed a petition seeking to legitimate the child, requesting that he be named primary residential parent, and asking that the mother be prevented from moving to Florida with the child. In her answer, the mother asked to be named as the child’s primary residential parent and, having already moved,to be allowed to remain in Florida with the child. After trial, the court ruled that there was no reasonable purpose in the mother’s proposed relocation and that the mother was to return to Tennessee with the child; the court entered a permanent parenting plan which designated the mother as primary residential parent and also ordered the father to pay a portion of the mother’s attorney fees. The mother appeals the court’s disposition of the petition to legitimate; the father appeals the award of fees to the mother. We affirm the decision to award fees to the mother, but vacate the award and remand for a redetermination of the amount; we affirm the court’s judgment in all other respects. |
Trousdale | Court of Appeals | |
Bobby J. Byrge, et al v. Parkwest Medical Center, et al
After taking a non-suit, Bobby J. Byrge, individually and as next of kin for the decedent Julia Kay Byrge, and the Estate of Julia Kay Byrge (“Plaintiff”) filed a second healthcare liability suit against Parkwest Medical Center (“Parkwest”) and Dr. John C. Showalter, M.D.1 Parkwest filed a motion to dismiss, and after a hearing, the Trial Court granted Parkwest’s motion finding and holding that Plaintiff’s suit was barred by the statute of limitations. Plaintiff appeals to this Court asserting that his suit was not barred as he was entitled to rely upon Tenn. Code Ann. § 28-1-105, the saving statute. We affirm finding and holding, as did the Trial Court, that Plaintiff’s first suit was not timely filed because Plaintiff did not comply with Tenn. Code Ann. § 29-26-121, and, therefore, Plaintiff could not rely upon Tenn. Code Ann. § 28-1-105 to save his second suit. |
Knox | Court of Appeals | |
Billy A. Mathes v. Dr. Edmond Lane et al
The plaintiff, a state prison inmate, appeals the trial court’s dismissal of his health care liability action against the defendant doctor and his complaint against the warden of the facility where he was treated by the doctor. The trial court granted the defendant doctor’s motion to dismiss based upon the plaintiff’s failure to comply with the requirements of the Tennessee Medical Malpractice Act (“TMMA”). See Tenn. Code Ann. §§ 29-26-115 to -122 (Supp. 2013). The trial court also granted the warden’s motion to dismiss upon finding that the plaintiff’s complaint contained no factual allegations against the warden. Discerning no error, we affirm. |
Morgan | Court of Appeals | |
In the Matter of the Estate of Dennis R. Woolverton
This is a will contest. The alleged will was signed by three witnesses. At the hearing on the will contest, two of the three witnesses and a notary public testified about the signatures on the purported will. The trial court held that the document was the decedent’s validly executed will and admitted it to probate. On appeal, the contestant of the will argues that the will proponent failed to satisfy the statutory requirement of proof from all living witnesses, if to be found, because the third witness to the will did not appear or testify. We hold that the proponent of the purported will was required to either submit the testimony of all living witnesses or show that a living witness whose testimony was not proffered was not to be found. However, because the trial court failed to make findings of fact and conclusions of law regarding the availability of the third witness, as required under Tenn. R. Civ. P. 52.01, we must vacate the trial court’s decision and remand. |
Weakley | Court of Appeals | |
Acuff International, Inc. v. Sanyo Manufacturing Corporation
This case involves issues of breach of contract and negligence. After a bench trial, the trial court found in favor of the Defendant/Appellee manufacturer. Because the trial court’s order does not contain sufficient findings of fact and conclusions of law to satisfy the requirements of Rule 52.01 of the Tennessee Rules of Civil Procedure, we vacate the judgment of the trial court and remand for the entry of an order with appropriate findings of fact and conclusions of law. |
Shelby | Court of Appeals | |
In Re: Jonathan S. C-B.
This is the second appeal in an ongoing custody dispute. Mother was initially designated primary residential parent of the child. Later, Father filed a petition alleging Mother was interfering with his parenting time and trying to turn the child against him. Mother then alleged Father was abusing their child, which allegations were determined to be unfounded. During that litigation, Father successfully demonstrated a material change in circumstances and became the primary residential parent; following that award, Mother filed the first appeal and this court affirmed the trial court’s ruling. The present appeal arises from Father’s petition requesting a modification of the parenting plan and to, inter alia, suspend Mother’s parenting time; subsequently,Mother filed her counter-petition requesting, inter alia, change of custody, along with renewed allegations that Father was physically and sexually abusing their child.The trial court dismissed Mother’s counter-petition and granted in part and denied in part Father’s petition. Mother appeals contending the trial court erred in dismissing her counter-petition; she also contends the trial court erred in excluding rebuttal testimony from her expert witnesses. Father appeals contending the award of attorney’s fees and expenses was inadequate; he also contends this appeal is frivolous and that he should be awarded damages. We affirm the trial court in all aspects and, although we do not find Mother’s appeal frivolous, we find Father is entitled to recover, pursuant to Tennessee Code Annotated § 36-5-103(c), his reasonable and necessary attorney’s fees and expenses incurred on appeal because this action involves custody of the parties’ child. |
Davidson | Court of Appeals | |
Alvin Evans v. FedEx Express
Plaintiff filed an action against his employer alleging discrimination in violation of the Tennessee Human Rights Act. The trial court awarded summary judgment to Defendant employer on the basis that the action was barred by the contractual limitations period contained in the employment agreement executed by the parties. We affirm. |
Shelby | Court of Appeals | |
William Paul Luttrell v. Beverly Parker Luttrell
In this divorce action, the trial court awarded Wife an absolute divorce, classified and distributed the marital property, and ordered Husband to make child support payments of $1,112 per month. Husband appealed. We affirm the judgment of the trial court. |
Shelby | Court of Appeals | |
Anna Lois Long v. Sammy Lee Brown
Anna Lois Long (“petitioner”) obtained an ex parte order of protection against Sammy Lee Brown (“respondent”), the man with whom she had lived for approximately 27 years. Following a hearing, the trial court entered a mutual order of protection for a period of one year. Petitioner argues on appeal that the trial court erred in making the order of protection mutual and that the order was unlawful because it did not comport with the requirements of the governing statutory scheme, Tenn. Code Ann. § 36-3-601 et seq. (2010). We hold that the trial court erred when it made the order of protection mutual in view of the fact the respondent did not seek an order of protection. The order should be modified so as to be directed only against respondent. We further hold that the trial court’s order should also be modified to include “the statement of the maximum penalty that may be imposed pursuant to § 36-3-610 for violating [the] order” as required by Tenn. Code Ann. § 36-3-606(c). We conclude that the court’s order in all other respects satisfies the statutory requirements governing an order of protection. Accordingly, we affirm the trial court’s judgment as modified. |
Hamilton | Court of Appeals | |
Laurence R. Dry v. Christi Lenay Fields Steele, et al
The plaintiff, a licensed attorney, filed this pro se third party action two weeks before his death on May 17, 2012. The defendants filed a suggestion of death under Tenn. R. Civ. P. 25.01. When no motion for substitution was filed during the prescribed time period, the defendants filed a motion to dismiss. At the hearing on the motion, the decedent’s surviving spouse, who had practiced law with him, appeared by telephone and informed the trial court that she was not a party and was not representing the decedent or his estate with respect to the plaintiff’s third party complaint. Despite these representations, she asserted that the court should hear her argument as to why her late husband’s action should not be dismissed. The trial court dismissed the action for failure to timely seek substitution of party, and also granted defendants’ motion for judgment on the pleadings. The surviving spouse filed a notice of appeal. We hold that the defendants provided proper notice under Rule 25.01 by mailing a copy of the suggestion of death to the law firm address of decedent and his surviving spouse. We further hold that decedent’s surviving spouse did not have standing to file this appeal because (1) she was not a party, (2) did not represent her decedent husband, and (3) did not represent his estate, which had not been opened when the trial court entered its final judgment. We affirm the judgment of the trial court and dismiss this appeal. |
Anderson | Court of Appeals | |
In Re: E.K. et al
D.K., Sr., (“Father”) appeals the termination of his rights to his three minor daughters E.K., H.K., and H.K. (collectively, “the Children”). The Department of Children’s Services (“DCS”) had a history of involvement with Father, the Children, and another older minor child, D.K., Jr.2 In 2007, all four children were taken into protective custody following an incident of domestic violence between Father and his then-wife, C.K. (“Stepmother”). In the earlier matter, custody of the four children was awarded to Stepmother; Father was allowed supervised visitation. In 2012, the Children were placed in the protective custody of DCS following allegations of physical and psychological abuse by Stepmother. Father was not a placement option because of “ongoing Juvenile Court matters” concerning D.K. Jr. as well as a lack of space in his home. Stepmother waived her right to a hearing and the Children were adjudicated dependent and neglected by an agreed order. They entered DCS custody and were placed in foster care.3 A year later, DCS initiated termination proceedings. |
Monroe | Court of Appeals | |
In Re: S.J.W. et al
T.R.D. (“Mother”) and S.M.W. (“Father”) appeal the termination of their rights to four minor children, S.J.W., B.H.D., J.E.W., and J.C.D. (“the Children”). The Department of Children’s Services (“DCS”) had been involved with the family since 2006. DCS received multiple referrals regarding environmental neglect and lack of proper care of the Children. DCS made efforts to assist the parents in providing the Children with suitable housing and basic physical and medical care. In August 2010, DCS received another referral alleging environmental, medical, and nutritional neglect. New services were provided without substantial improvement. In October 2010, the Children were removed from the parents’ home and taken into temporary, protective custody. The following month, they were adjudicated dependent and neglected and placed in foster care. A year later, DCS filed a petition to terminate the parents’ rights. Following a bench trial, the court found, by clear and convincing evidence, that multiple grounds for termination exist as to both parents and that termination is in the Children’s best interest. Both Mother and Father appeal. We affirm. |
Sullivan | Court of Appeals | |
Beverly Beal, et al. v. Benton County, et al.
This case results from a county employee’s assertion that the county’s decision to require some employees to contribute to their insurance premiums, while not requiring a contribution from others, violates equal protection. The trial court granted summary judgment to the county, concluding that the legislation was rationally related to a legitimate government interest. After a thorough review of the record, we affirm and remand. |
Benton | Court of Appeals | |
Teresa Vincent v. Jerry S. Johnston, Sr.
This boundary line dispute involves a five-acre parcel of real property (“Disputed Property”) in McMinn County to which the petitioner and respondent, who own adjoining parcels, both claim ownership. The petitioner filed a petition to quiet title, requesting that she be declared the owner of the Disputed Property, and for declaratory judgment as to damages she claimed as a result of the respondent’s alleged trespass, encroachment, and harvesting of timber. The respondent filed a counter-petition, alleging that he was the rightful owner of the Disputed Property; raising affirmative defenses of waiver/estoppel, champerty, and adverse possession; and requesting damages for the petitioner’s alleged encroachment and destruction of boundary markers. Following a bench trial, the trial court declared the petitioner the owner of the Disputed Property, dismissed the respondent’s counter-petition, and dismissed all claims for damages. The respondent appeals. We affirm the trial court’s finding that title to the Disputed Property is vested in the petitioner. We determine, however, that the respondent has established the statutory defense of adverse possession, pursuant to Tennessee Code Annotated § 28-2-103 (2000), only to the extent that certain improvements encroach upon the Disputed Property, and we reverse upon this ground. We remand to the trial court for determination as to the extent of the encroachments. We affirm the trial court’s judgment in all other respects. |
McMinn | Court of Appeals | |
In Re: Jocilyn M.P.
In August of 2012, Chloe S.K. (“Mother”) and Timothy A.K. (“Step-father”) filed a petition seeking to terminate the parental rights of Joshua A.P. (“Father”) to the minor child Jocilyn M.P. (“the Child”) and to allow Step-father to adopt the Child. After a trial, the Trial Court entered its Final Order Terminating Parental Rights on August 19, 2013 terminating Father’s parental rights to the Child after finding and holding, inter alia, that clear and convincing evidence existed of grounds to terminate Father’s parental rights to the Child pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-102 (1)(A)(iv) for both willful failure to support and for wanton disregard, and that clear and convincing evidence was proven that it was in the Child’s best interest for Father’s parental rights to be terminated. Father appeals the termination of his parental rights. We affirm the termination of Father’s parental rights to the Child. |
Knox | Court of Appeals | |
Christopher Vance Smalling v. Sarah Rebecca Smalling
We granted Christopher Vance Smalling’s (“Husband”) application for extraordinary appeal pursuant to Tenn. R. App. P. 10 to consider issues related to his suit for divorce from his wife Sarah Rebecca Smalling (“Wife”). This divorce case reached an unexpected impasse when the Chancery Court for Sullivan County (“the Trial Court”) refused to set a hearing in the matter until a Temporary Parenting Plan concerning the parties’ minor child was entered. Husband appeals, arguing both that he had complied with local rules by submitting a suitable Temporary Parenting Plan and that state law does not require the filing of a Temporary Parenting Plan in circumstances like those of this case. We hold that the local rules are in conflict with Tenn. Code Ann. § 36-6-403 because they require the filing of a written Temporary Parenting Plan even though the statute specifically states this is not required if the parties agree, as in this case, to a Temporary Parenting Plan. We also hold that even if we err in our judgment that Tenn. Code Ann. § 36-6-403 conflicts with and overrides the local rules, Husband complied with the local rules by submitting a Temporary Parenting Plan. We reverse the Trial Court. |
Sullivan | Court of Appeals | |
Donald Harp and Mary Harp v. Metropolitan Government of Nashville And Davidson County, et al
In this governmental tort liability action involving two metropolitan government employees, Employee 1 drove a school bus into Employee 2, resulting in serious injuries. Employee 2 and his wife filed suit under the Governmental Tort Liability Act against metropolitan government alleging that Employee 1 was negligent while acting in the course and scope of her employment and that, therefore, metropolitan government was liable under the doctrine of respondeat superior. Metropolitan government filed a third-party complaint against Employee 1 seeking to recover lost wages and medical expenses paid to Employee 2. The trial court determined that statutory removal of metropolitan government’s immunity for injuries caused by Employee 1’s negligence resulted in Employee 1’s immunity from liability. Accordingly, the trial court entered judgment for Employee 2 and his wife against metropolitan government. We affirm. |
Davidson | Court of Appeals | |
Michael Jeffries, et. al. v. United States Metal Powders, Inc.
This appeal arises from a dispute concerning an employment contract between United States Metal Powders, Inc. and Plaintiffs, who claimed that they were owed vacation and severance pay when the company ceased production and sold its assets. United States Metal Powders, Inc. denied that Plaintiffs were owed vacation and severance pay. Following a bench trial, the trial court awarded severance pay but denied the claim for vacation pay. United States Metal Powders, Inc. appeals. We affirm the decision of the trial court and remand for proceedings consistent with this opinion. |
Blount | Court of Appeals | |
In Re: Caylee R.M.F.
This is a parental termination appeal brought by the incarcerated biological father. The child at issue was placed with the petitioners shortly after her birth five years ago. The trial court found clear and convincing evidence to support the ground for termination and clear and convincing evidence that such termination was in the child’s best interest. The father appeals. We affirm. |
Hawkins | Court of Appeals | |
In Re: Robert D., et al
This is a termination of parental rights action focusing on the two minor children (“the Children”) of mother, Sandra W. (“Mother”). A termination petition was filed by the Tennessee Department of Children’s Services (“DCS”) after the third custody proceeding involving the Children. The petition alleges the statutory grounds of abandonment, substantial noncompliance with the permanency plans, and persistent conditions. Following a bench trial, the trial court granted the petition upon its findings, by clear and convincing evidence, that (1) Mother had abandoned the Children, (2) Mother had failed to substantially comply with the permanency plans, and (3) the conditions leading to removal still persisted. 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. We affirm. |
Cumberland | Court of Appeals |
