State of Tennessee, ex rel. Kathy D. Flores v. Lawrence Ralph
The State filed a petition for contempt against a man who had fallen far behind in his child support obligation, in part because he was incarcerated for a large portion of the time. The trial court reduced the arrearage to judgment in the amount of $28,632, found the father in contempt for failing to pay while he was not in jail, and sentenced him to serve 90 days in jail. Because the State did not prove beyond a reasonable doubt that the father had the ability to pay child support during the periods in question, we vacate the sentence for criminal contempt. We also vacate the arrearage judgment and remand this case to the trial court for reconsideration of arrearage. |
Warren | Court of Appeals | |
Phillip C. Penny, Kurtis Schilk, and Robert Tebbetts v. The City of Memphis and City of Memphis Civil Service Commission
This case involves the termination of a municipal police officer. The police department received a report on an attempted suicide by a mental patient. The appellant officer and other officers responded. When the officers arrived at the scene, the suicide victim was sitting on his front porch, bleeding from self-inflicted wounds. As the officers approached the individual, he tried to flee. Attempting to gain control over the individual, the officers repeatedly struck him with their police |
Shelby | Court of Appeals | |
Carmen Rampaul Mohammed v. Farouk Mohammed
This is an appeal involving a post-divorce award of alimony in futuro. The court awarded the wife a divorce from the husband after 36 years of marriage. The husband has a bachelor’s and master’s degree in electrical engineering. The wife does not have a college degree and makes a living as a hair stylist. In the final divorce decree, the court awarded the wife temporary alimony in the amount of $3,500 per month. The husband sought to reduce his alimony obligation. At the hearing, the court found a material change in circumstances and reduced the husband’s alimony obligation from $3,500 a month to $2,000 a month. The court ordered, however, that this $2,000 a month award was in futuro until the wife’s death or remarriage. The husband appeals, and we affirm and remand for a determination of an appropriate award of the wife’s attorney’s fees. |
Shelby | Court of Appeals | |
Manhattan, Inc., D/B/A New York New York v. Shelby County, Tennessee, City of Memphis, and Memphis – Shelby County Office of Construction Code Enforcement
This is a petition for a writ of mandamus. The plaintiff purchased a vacant nightclub and sought to reopen it as a topless club. To this end, the plaintiff nightclub owner filed an application for a beer permit and a compensated dance permit from the city beer board, and for a certificate of occupancy with the local construction code enforcement office. After protracted litigation, the nightclub owner obtained the necessary beer and compensated dance permits. Subsequently, the construction code office issued a certificate of occupancy to the nightclub owner, but later sought to restrict it to prohibit sexually-oriented entertainment. This was unsuccessful, so the construction code enforcement office revoked the certificate. The nightclub owner then filed the instant petition for a writ of mandamus against the county and the construction code enforcement office, asking the trial court to compel the construction code office to issue an unrestricted certificate of occupancy. The defendants argued, inter alia, that the plaintiff’s intended use for adult entertainment was not “grandfathered” because the plaintiff had abandoned the nightclub while seeking the required permits. After a bench trial, the trial court held in favor of the nightclub owner and granted the writ of mandamus. The defendants now appeal. We affirm, finding that the trial court did not err in finding that the nightclub owner’s business use was lawful, and that the nightclub owner did not abandon the property during the time it was involved in litigation over the beer permit. |
Shelby | Court of Appeals | |
BellSouth Advertising and Publishing Corporation v. Primary Residential Mortgage, Inc.
The trial court held that a mortgage company’s branch manager had apparent authority to bind the company to local advertising contracts although there was a limitation on the branch manager’s authority which prohibited execution of contracts without the company’s approval. Since the mortgage company established the branch manager as a general agent, it was incumbent on the company to notify third parties of any limitations on the agent’s authority. Since it did not do so, the third party had a good faith belief in the agent’s apparent authority, and the trial court is affirmed. |
Williamson | Court of Appeals | |
Selma P. Griffin v. Munford Development Company and Charles Walker
This case involves the statute of repose for actions based on improvements to real property. The defendant developer purchased and developed a lot for sale as part of a residential development. The plaintiff purchased the lot by warranty deed. The developer represented to the plaintiff that the lot was suitable for the construction of a residential dwelling. Relying on this representation, the plaintiff purchased the lot and built a house on it. Two years after the purchase, the house began to develop cracks in the foundation and exterior walls. Over the next two years, the problems worsened, so the plaintiff obtained an evaluation by professional engineers. The engineers informed the plaintiff that the house’s structural problems may have arisen because the soil on which the house was built was unsuitable to support such construction. The plaintiff then sued the development company and its president, claiming fraudulent misrepresentation, breach of implied warranty, and breach of express warranty. The defendants moved for summary judgment, asserting that the fouryear statute of repose on claims involving improvements to real property barred the plaintiff’s action. The plaintiff argued that the statute of repose was not applicable because her claims were based on misrepresentation. The trial court granted the defendants’ motion, and the plaintiff appeals. We affirm, finding that the plaintiff failed to introduce evidence that any of the defendants had knowledge that the soil conditions were unsuitable to support a residential dwelling at the time the alleged misrepresentations were made. |
Tipton | Court of Appeals | |
Federal Express vs. The American Bicycle Group, LLC
Federal Express (“Plaintiff”) filed a Complaint on Sworn Account in the Knox County Chancery Court claiming that the defendant, The American Bicycle Group, LLC (the “LLC”), owed Plaintiff $121,619.32. The LLC filed a Tenn. R. Civ. P. 12.02(3) motion to dismiss based on improper venue. The LLC claimed that venue was improper in Knox County because: (1) Plaintiff’s principal place of business was in Shelby County; (2) the LLC’s principal place of business was in Hamilton County; and (3) the alleged cause of action arose in Shelby County. Following a hearing, the LLC’s motion to dismiss was denied by the Trial Court because the LLC’s registered agent for service of process was located and served in Knox County. Both the Trial Court and this Court granted the LLC’s request for permission to file a Tenn. R. App. P. 9 interlocutory appeal. The sole issue on this appeal is whether the Knox County Chancery Court is a proper venue for Plaintiff’s action. We affirm the judgment of the Trial Court. |
Knox | Court of Appeals | |
Cracker Barrel Old Country Store, Inc., et al., v. Richard Epperson, et al.
In denying a request for attorneys’ fees in an action involving the enforcement of a declaration of easements and restrictions, the trial court found the phrase “costs and expenses” in that declaration does not include recovery of attorneys’ fees. The trial court is affirmed. |
Davidson | Court of Appeals | |
Trisha Ellen Dillingham v. David Clyde Downard
Mother sought court approval to relocate out-of-state due to a job transfer which would result in a significant increase in pay. When the matter came on to be heard, the job opportunity was no longer available. Father contends that the trial court should have dismissed the petition due to mootness. We agree. The matter is remanded to the trial court for entry of an order of dismissal. |
Madison | Court of Appeals | |
State of Tennessee, Department of Children's Services, v. K.B., S.M., and Any Unknown Fathers, In the Matter of: P.B. (dob 5/25/05) A Child Under Eighteen (18) Years of Age
In this parental termination case, the Trial Court terminated the parental rights of the mother, finding that clear and convincing evidence established statutory grounds for termination as provided in Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-102(1)(A) and (E). The Trial Court found there was clear and convincing evidence that it was in the best interest of the minor child to terminate the parental rights of the parent. The mother has appealed and on appeal we affirm the Judgment of the Trial Court. |
Washington | Court of Appeals | |
IN RE: D.C.C. and J.E.C.
Following a lengthy hearing, the trial court terminated the parental rights of the mother of two yearold twin boys on multiple grounds. We affirm the termination. |
Dickson | Court of Appeals | |
Linda Jean Cook (Ramsey) vs. Larry Dean Cook - Dissenting
The parties in this case have struggled mightily for many years to fashion a court order that the plan administrator would find legally acceptable as a qualified domestic relations order under the applicable federal statutory scheme. Apparently, their efforts to date have been unsuccessful. The trial court and the majority opinion place a great deal of emphasis and significance on the proposed qualified domestic relations order of November 21, 1995. I do not. It seems to me that all of the proposed qualified domestic relations orders are totally lacking in legal effect. None were accepted by the plan administrator and, hence, even though signed by the court and the parties and/or their counsel, they are without legal efficacy. |
Jefferson | Court of Appeals | |
Linda Jean Cook (Ramsey) vs. Larry Dean Cook
In this post-divorce action, Linda Jean Cook (Ramsey) (“Wife”) requested the Trial Court to order her ex-husband, Larry Dean Cook, (“Husband”) to execute a Qualified Domestic Relations Order (“QDRO”) dividing his retirement plan according to the Property Settlement Agreement incorporated into the parties’ divorce decree more than ten years ago. The parties had previously drafted – and the Trial Court approved – several QDROs that were rejected by the plan’s administrator. Wife maintained that she was supposed to receive her one-third of the plan in shares of stock, which had appreciated considerably since the divorce. Husband asserted that Wife was entitled to a specific dollar amount instead. Following a trial, the Trial Court found that Wife’s portion of the plan was one-third of the cash value of the plan at the time of the divorce, and then awarded her an additional six-percent interest, for a total of $46,184.27. We find no error in the Trial Court’s judgment, and we affirm. |
Jefferson | Court of Appeals | |
Swanson Developments, LP v. Bill Trapp and Jim Olsen, Individually, and d/b/a Paksource a/k/a Parksource
Plaintiff filed this action in General Sessions Court, seeking back rent and possession of properties leased to defendants. The Sessions Court gave plaintiff monetary judgment against defendants, who appealed to Circuit Court and made an appeal bond in the amount of $500.00 pursuant to Tenn. Code Ann. § 27-5-103. In Circuit Court plaintiff contended that defendants should have given an appeal bond as specified in Tenn. Code Ann. § 29-18-130 and asked the Circuit Court to dismiss the appeal. The Circuit Court refused and ultimately dismissed plaintiff’s claims. On appeal we hold that defendants failed to give the proper statutory bond to appeal the case to Circuit Court and that the appeal was not properly perfected and the Judgment of the Sessions Court will be reinstated upon remand. |
Rutherford | Court of Appeals | |
ESI Companies, Inc. v. Ray Bell Construction Company, Inc., et al.
This appeal involves the applicability and enforceability of a forum selection clause in a construction contract. The contract was for the design and construction of a Kentucky correctional facility. The contract between the Commonwealth of Kentucky and the general contractor, a Tennessee corporation, provided that all actions on the contract must be filed in Franklin County Circuit Court in Frankfort, Kentucky. The general contractor entered into a subcontract with another Tennessee corporation for the performance of certain work on the Kentucky correctional facility. The subcontract incorporated all terms of the original contract by reference and contained a “flow-down” provision. The subcontractor later sued the general contractor in Shelby County, Tennessee. When the general contractor moved to dismiss for lack of venue, the subcontractor contended that the forum selection clause did not apply to its claims. The subcontractor also contended that the forum selection clause was unenforceable under the facts of this case. The trial court found in favor of the subcontractor. We granted the general contractor’s Rule 10 application for extraordinary appeal. We reverse and remand, finding that the forum selection clause was applicable and enforceable, and the lawsuit should have been filed in Kentucky. |
Shelby | Court of Appeals | |
James Samual Geary v. Connie S. Geary
This appeal involves a petition to construe a will and ademption by extinction. The decedent had a non-retirement cash brokerage account that contained four municipal bonds worth approximately $340,000. Five percent of the account was held in mutual funds and cash. The decedent executed a holographic will that included a specific bequest of the contents of the brokerage account to his wife. The will identified the account by its account number and brokerage firm, and it specifically described the contents of the account being bequeathed to the wife. After the decedent executed the will, his brokerage firm assigned a new account number to his brokerage account. The decedent subsequently arranged an “in-kind” transfer of all the contents of the account to another brokerage firm. The contents of the new account were the same as the contents of the old account: the same four municipal bonds and a small amount of cash and cash equivalents. When the decedent died, he was survived by his wife and his son from a previous marriage. The son contended that because the brokerage account number named in the will held no assets, the bequest was extinguished. He argued that the brokerage account with the new brokerage firm should pass by intestate succession, and therefore he should receive seventy percent of the asset. The probate court held that the change in account number and broker did not materially change the subject of the specific bequest, and therefore the wife was entitled to the contents of the brokerage account. The son appeals. We affirm. |
Madison | Court of Appeals | |
Town of Huntsville, Tennessee, et al. v. Scott County, Tennessee, et al.
The dispositive issue on appeal in this annexation dispute by the annexing municipality against the county and Tennessee Commissioner of Revenue is which tax allocation statute controls the allocation of Local Option Revenue derived from the annexed territory, the one in effect when the municipality passed the annexation ordinances upon final reading or the one in effect when quo warranto litigation challenging the ordinances was concluded. The county and Commissioner of Revenue contend the statute in effect when the quo warranto actions challenging the validity of the ordinances were concluded applies, because that is the date the annexations became operative. The municipality contends that the tax scheme in effect when the ordinances were passed by final reading applies became the quo warranto actions challenging the ordinances were dismissed due to the petitioners’ failure to effect sufficient service of process on the municipality. The Chancellor ruled in favor of the municipality, finding in pertinent part that the quo warranto litigation that was filed but not followed by sufficient service of process had no effect on the operative dates of annexation. We reverse, finding that the statute in effect when the quo warranto litigation was concluded controls the allocation of tax revenue from the annexed territories. |
Scott | Court of Appeals | |
Joanne Ruth Bearb v. Michael Edwin Bearb
This appeal arises from a divorce case. The trial court awarded Wife a divorce based on adultery and awarded her alimony in futuro the amount of $5000 per month for ten years and $2500 per month thereafter. The trial court additionally awarded Wife alimony in solido in the amount of $100,000, and awarded Wife her attorney’s fees. Husband appeals. We affirm the award of divorce to Wife and the alimony awards, but reverse the award of attorney’s fees. |
Madison | Court of Appeals | |
Marc A. Schwartz v. James Neely, Commissioner of Labor & Workforce Development of the State of Tennessee
This appeal arises from the denial of Plaintiff’s claim for unemployment benefits by the Tennessee Department of Labor and Workforce Development. We affirm. |
Shelby | Court of Appeals | |
Lisa Faye Roland Camp v. Randy Coleman Camp
This appeal arises from a divorce action. Husband appeals the trial court’s award of alimony in futuro in the amount of $1600 per month to Wife. Wife asserts this appeal should be dismissed for unclean hands. She further asserts the trial court erred by finding the parties stipulated as to grounds for divorce, in setting alimony at $1600 per month, by not ordering an automatic increase in alimony upon emancipation of the children, by failing to award her all of her attorney’s fees, and by ordering Husband to name Wife and the children as beneficiaries of his life insurance policy. We affirm. |
Crockett | Court of Appeals | |
Thomas Morrow, et al v. Ronnie Bull, et al.
The tenants, who leased a newly-constructed house from the builder/owner, sued the builder/owner alleging, among other things, that the house was negligently constructed in that it was built on a site that unreasonably exposed the house to excessive moisture and with a deficient water runoff and drainage system. The tenants sought compensation for personal injury and property damage allegedly caused by toxic mold in the house due to excessively wet basement walls. The trial court granted the builder/owner summary judgment. Upon review, we vacate the trial court’s summary judgment based on our finding that genuine issues of material fact exist. |
Hamilton | Court of Appeals | |
Central Sales and Services, Inc., Edward J. Kehrer and Ralph A. Deavers v. Mark A. Berg
Plaintiff corporation and stockholders sued defendant to enforce a Stock Redemption and Shareholder Agreement signed by defendant, when he refused to comply with the terms of the Agreement after he was terminated from the company. The Trial Court granted plaintiff partial summary judgment, finding that the Agreement was enforceable, and defendant has appealed. We affirm the partial summary judgment of the Trial Court and remand, with instructions. |
Humphreys | Court of Appeals | |
M. R. Stokes Company, Inc. v. Michael L. Shular, et al.
This is a construction case. In a contract prepared by the plaintiff, contractor agreed to install sewer lines, water lines, roads and to perform certain site preparation work for a section of a subdivision development owned by the defendant-owner. The total contract price is $925,000, which includes the material and labor to complete the project. The trial court entered judgment for contractor. Owner appeals and contractor cross-appeals. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. |
Sumner | Court of Appeals | |
David Michael Rust v. Southern Environmental Contractors, Inc., et al.
An employee/minority shareholder appeals the summary dismissal of his action in which he sought to recover commissions the corporation allegedly owed him for prior work and damages arising out of an alleged breach of fiduciary duty and fraud by the president/majority shareholder. The trial court granted the Motions for Summary Judgment filed by the corporation and by the president/majority shareholder, finding the employee failed to show that there was a genuine issue for trial as to whether employee was owed commissions and whether the president/majority shareholder committed fraud or breached his fiduciary duty. We affirm. |
Davidson | Court of Appeals | |
State of Tennessee, Department of Children's Services v. Leigh Ann McAlister, et al.
This is a termination of parental rights case. Mother/Appellant appeals the Order of the Shelby County Juvenile Court terminating her parental rights to her two minor children. Specifically, Appellant asserts that the grounds of persistence of conditions and failure to substantially comply with the permanency plans are not supported by clear and convincing evidence in the record, and that termination of her parental rights is not in the best interests of the children. Because we find clear and convincing evidence in the record to support termination on the grounds of failure to substantially comply with the permanency plans, and clear and convincing evidence that termination is in the best interests of the children, we affirm. |
Shelby | Court of Appeals |
