The Oceanics Schools vs. Clifford Barbour, Jr. E2002-00181-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
This matter is before us on the petition of the plaintiff for a rehearing pursuant to Tenn. R. App. P. 39.
Knox
Court of Appeals
Ann Wing v. Estate of James Wing M2001-01598-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Marietta M. Shipley
The Circuit Court of Davidson County ordered the husband involved in a divorce to pay $230 per week in support payments to the wife after the husband retired from the Metropolitan Government of Nashville and Davidson County. When the husband retired he elected to receive guaranteed payments for 120 months and designated his daughter as the beneficiary to receive the payments if he died within the 120 month period. The court then modified its prior order to provide that the payments were a division of the husband's pension from the Metropolitan Government of Nashville and Davidson County. After the husband's untimely death, the court ordered the Metropolitan Government and/or the husband's daughter who had been made the beneficiary of the pension to make the payments. Because we find that the court lacked personal jurisdiction over Metro and the daughter, we reverse the court's order and remand for further proceedings.
Davidson
Court of Appeals
M2002-02603-COA-R3-JV M2002-02603-COA-R3-JV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Lee A. England
Lawrence
Court of Appeals
Billy Culp v. Billie Grinder M2002-01512-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Jim T. Hamilton
The Culps brought suit against their neighbors, the Grinders, for removal of a septic tank solid line located on their property. The Culps argued that the ten foot easement reserved by the subdivision for "utilities" did not include personal septic tanks. The trial court dismissed the suit and found that the septic tank solid line placement was a type of "utility" and was within the ten foot easement; further, the court found no damages had been suffered by the Culps. We affirm the decision of the trial court.
Wayne
Court of Appeals
State v. R.S. and K.S. M2002-00919-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Buddy D. Perry
This appeal involves a petition filed by the Department of Children's Services to terminate the parental rights of Mother and Father to their three minor children. The trial court denied the petition and ordered the children returned to Mother and Father. The Department appeals the decision of the trial court, arguing first that there was clear and convincing evidence to support termination, and secondly, even if the denial is upheld, the trial court lacked jurisdiction to order the children's return to their parents. Because we find the petition was properly denied, but further find the trial court lacked jurisdiction to order the children's return home, we affirm in part, vacate in part, and remand.
Franklin
Court of Appeals
Shin Yi Lien v. Ruth Couch M2002-01625-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: John D. Wootten, Jr.
This is the second time the parties have been before this court in a dispute over the purchase of emu chicks. In this appeal, the Plaintiffs take issue with the trial court's limitation of damages recoverable under the Tennessee Consumer Protection Act. We reverse the judgment of the trial court.
Wilson
Court of Appeals
Reta Tompkins v. Kevin Helton M2002-01244-COA-R3-CV
Authoring Judge: Chancellor Carol L. McCoy
Trial Court Judge: John A. Turnbull
The Plaintiffs, Reta J. Tompkins and her husband, Michael J. Tompkins, brought this negligence action against the Defendant, Kevin W. Helton, as the agent for the Defendant, B.K. Luna, individually and d/b/a Big Foot Speedway, Inc., a/k/a Tennessee Motor Speedway. The Defendants filed a motion for summary judgment with a copy of the Release and Waiver of Liability Agreement signed by the Plaintiffs. The trial court granted partial summary judgment, found that the release was valid as to the Defendants and released the Defendants as to all causes of action based on ordinary negligence. We affirm.
Putnam
Court of Appeals
Elizabeth Snodgrass v. Allen Freemon M2002-01247-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Stella L. Hargrove
Defendant/Cross-Claimant appeals the action of the trial court in holding that Cross-Claimant had not carried his burden of proof to establish adverse possession of the property in issue. We affirm the judgment of the trial court.
Lawrence
Court of Appeals
Evan Roberts vs. Miller Industries E2002-01726-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Frank Brown, III
In this appeal from the Chancery Court for Hamilton County the Appellants/Defendants, Miller Industries, Inc. and Road One, Inc., contend that the Trial Court erred in awarding the Appellee/ Plaintiff, Evan J. Roberts, damages for breach of contract. The judgment of the Trial Court is affirmed in part and reversed and vacated in part, and the cause is remanded for collection of costs below.
Royden Russell and Judy Russell ("Plaintiffs") entered into a contract with Malvin L. Bray and Diedre Bray ("Sellers") to purchase a house. The sales contract required Plaintiffs to obtain an inspection by a professional home inspector. Plaintiffs hired Randall L. Douthat and Holly Douthat d/b/a The HomeTeam Inspection Service ("Defendants") to perform the home inspection. Royden Russell signed a form contract ("Contract") presented by Defendants. The Contract contained an exculpatory clause limiting Defendants' liability to the lesser of the cost of repair or the amount of the inspection fee. After moving into the house, Plaintiffs discovered structural problems. Plaintiffs sued Sellers, the realtors involved in the sale of the house, and Defendants. Plaintiffs filed a motion for partial summary judgment concerning the exculpatory clause contained in the Contract. Defendants responded by filing a Renewed Motion for Summary Judgment concerning, in part, the exculpatory clause. The Trial Court held the exculpatory clause was not against public policy and was enforceable. The Trial Court also granted Plaintiffs permission to file an interlocutory appeal. Plaintiffs applied to this Court and were granted an interlocutory appeal on the limited issue of whether the Trial Court erred in holding the exculpatory clause was not against public policy. We reverse.
Sullivan
Court of Appeals
Larry Benton v. Vanderbilt University M2002-00085-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Carol L. Soloman
This is a case of first impression regarding the enforceability of an arbitration agreement against a third party. The plaintiff was a passenger in an automobile accident and was treated at the defendant hospital. The hospital filed a statutory hospital lien against any proceeds the plaintiff might recover in any lawsuit arising out of the car accident. The plaintiff later successfully sued the tortfeasor for the injuries he sustained in the accident. Thereafter, the hospital sought to recover under its lien for the balance of the plaintiff's medical bills that were not paid to the hospital by the plaintiff's insurance carrier. The plaintiff filed this action against the hospital, claiming that the hospital's practice of balance billing violates the institution agreement between the hospital and the plaintiff's insurance carrier. The hospital filed a motion in the trial court to compel arbitration, pursuant to an arbitration provision contained in the institution agreement. The trial court denied that motion. The hospital now appeals the denial of its motion to compel arbitration. We reverse, concluding that the plaintiff, a third-party beneficiary to the institution agreement seeking to enforce his rights under that agreement, is bound by the arbitration provision contained within that agreement.
Rodney Johnson v. James Gulley W2002-02357-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert A. Lanier
Shelby
Court of Appeals
Charles Woods vs. Angelika Woods E2001-02461-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John S. Mclellan, III
In this post-divorce case, Charles Grady Woods, acting pro se, appeals the Trial Court's orders finding him in contempt of court and awarding his former wife, Angelika Mazur Woods, certain sums which the Court found due and owing under the final decree of divorce. We affirm the judgment of the Trial Court.
Alice Beason vs. C.A.Beason E2002-01425-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Daryl R. Fansler
These appeals involve an equitable distribution of the Tier II railroad retirement benefits of C.A. Beason ("Husband"). When Alice Beason ("Wife") and Husband were divorced the first time in 1989, Wife admittedly made no claim for any of Husband's Tier II benefits and was awarded none. The parties then remarried in 1992 and were divorced for the second time in 1996. A Qualified Domestic Relations Order ("QDRO") eventually was entered in the second divorce which awarded Wife 100% of Husband's Tier II benefits. After Husband became disabled, Wife began receiving all of his Tier II benefits which had accumulated during Husband's 31 years of employment with the railroad. Husband claims he then realized for the first time the true effect of the QDRO and filed a Tenn. R. Civ. P. 60.02(5) motion seeking relief from the judgment. Husband's Rule 60.02(5) motion was granted and the Trial Court entered a new QDRO awarding Wife only 100% of the Tier II benefits which had accrued during the second marriage. Wife then sought relief by Rule 60.02(5) from the judgment entered in the first divorce in 1989, asking that Trial Court to award her an equitable distribution of the Tier II benefits which had accrued during the first marriage. Wife's motion was denied. Wife appeals both decisions. On appeal, we affirm the Trial Court's decision to grant Husband relief from the judgment in the second divorce, and we also affirm the Trial Court's refusal to grant Wife relief from the judgment in the first divorce.
Knox
Court of Appeals
Ann Utter vs. Howell H. Sherrod, Jr. E2002-00848-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Kindall T. Lawson
Howell H. Sherrod, Jr. ("Defendant") and Jerry A. Mooneyhan ("Dr. Mooneyhan") were partners. Defendant sued Dr. Mooneyhan regarding one of their partnership projects, Quality Dental Products. Dr. Mooneyhan died during the pendency of that matter. That suit resulted in a jury verdict for Dr. Mooneyhan that was affirmed on appeal. After the Quality Dental Products suit, Defendant withheld Dr. Mooneyhan's portion of the rents from another partnership property, the Bristol building. Ann Utter (formerly Mooneyhan) as Executrix of the Estate of Jerry A. Mooneyhan, deceased ("Plaintiff"), sued Defendant in chancery court seeking partition of the Bristol building and an accounting as to another partnership business, World Tech Fibers. Defendant claimed the chancery court lacked jurisdiction because he previously had filed a claim against the estate in probate court, which, Defendant argued, caused jurisdiction to be vested solely in the probate court. The Trial Court determined it had jurisdiction over the partition action and issues relating only to the Bristol building and World Tech Fibers. The Trial Court ordered and then confirmed partition by sale, awarded Plaintiff a judgment for certain sums related to the Bristol building and World Tech Fibers, and awarded Defendant a winding up fee as the surviving partner. Defendant and Plaintiff each appeal. We affirm in part, reverse in part, and remand.
Washington
Court of Appeals
McMinn County vs. Ocoee Environmental E2002-00702-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John B. Hagler, Jr.
This appeal questions the validity of a resolution enacted by Appellant McMinn County imposing a surcharge for solid waste disposal at all Class I landfills located in McMinn County. The resolution as initially passed imposed a surcharge of $4.00 per ton of waste, and was subsequently reduced by McMinn County to $2.75 per ton. Appellee Environmental Trust Company ("ETC"), which owns one of the two landfills in the county, refused to pay the surcharge, asserting that it was actually an unlawful tax. McMinn County filed this action to require ETC to pay the surcharge. The Trial Court held that the resolution imposed an unlawful tax, and granted summary judgment in favor of ETC. We affirm the judgment of the Trial Court.
McMinn
Court of Appeals
Carroll Clabo vs. Great American Resorts vs. Jim Falin E2002-01008-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Rex Henry Ogle
Carroll Clabo and wife, Blanche Clabo; Dorothy Reed and husband, Earl Reed; Edna Myers and husband, Jerry Myers; and Kate Clabo and husband, Junior Clabo ("Plaintiffs") and Great American Resorts, Inc. ("Defendant") own neighboring properties in Gatlinburg, Tennessee. Defendant developed its property and during construction altered the natural drainage causing rainfall to be diverted onto Plaintiffs' properties. The diverted water caused a landslide that destroyed the access roadway to Plaintiffs' properties and caused damage to Carroll and Blanche Clabo's house. The Trial Court found a permanent nuisance existed and awarded all Plaintiffs damages for diminution in value and $10,000 for the damage to Carroll and Blanche Clabo's house. Defendant appeals claiming the Trial Court erred in finding a permanent nuisance. We affirm.
