The Estate of Alline Elizabeth Glasgow, Clarence E. Biggs, et al. v. Virgil S. Whittum, et al. M2001-02263-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: C. L. Rogers
Proponents appeal judgment of the trial court on a jury verdict against the Will on a finding of undue influence by the proponents upon the testatrix. We affirm the judgment of the trial court.
Sumner
Court of Appeals
John Jay Hooker v. Don Sundquist, et al. M2002-01207-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Thomas W. Brothers
This case involves an appeal from an order denying a motion for Rule 11 sanctions. We reverse and remand.
Davidson
Court of Appeals
First National Bank of Chicago, et al. v. Cumberland Bend Investors, L.P., et al. M2000-00001-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Ellen Hobbs Lyle
This appeal involves a dispute between a buyer and a seller of commercial property in Nashville over the buyer's obligation to indemnify the seller for legal expenses incurred in a successful defense of a suit for commissions filed by the former manager of the property. The seller filed suit in the Chancery Court for Davidson County seeking to recover its legal expenses from the buyer under the theories of indemnification and contribution. The trial court granted the buyer's motion for summary judgment and dismissed the complaint because the seller failed to prove that it had an express or implied right to indemnification and because, as a matter of law, contribution was inappropriate under the circumstances. We concur and, therefore, affirm the trial court's dismissal of the complaint.
Davidson
Court of Appeals
James Ward vs. Susan Ward W2001-01078-COA-R3-CV
Authoring Judge: Judge Don R. Ash
Trial Court Judge: Walter L. Evans
Mr. James Ward filed a Compliant for divorce on July 31, 1998. Mrs. Ward filed a Counter-Complaint for Absolute Divorce on November 30, 2000. The trial was held February 19, 2001 through February 22, 2001 and continued March 1, 2001 to March 2, 2001. On March 2, the Chancellor issued findings of fact and divided the marital property. Mrs. Ward asked the court to find Mr. Ward dissipated approximately $107,355 in marital assets, and requested the court award her attorney's fees as well as litigation expenses because the search for hidden funds resulted in a large portion of her attorney's fees. The Chancellor determined Mr. Ward did not dissipate marital assets, and denied the request for attorney's fees. The chancellor entered the final decree of divorce on April 6, 2001. This appeal followed.
Prudential Botts & Associates vs. R & E Properties E2002-01827-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Frank Brown, III
In this case Prudential Botts & Associates Realtors, Inc., a real estate agency, sues R & E Properties, LLC, and one of its principals, Paula Ellis, and her father, James Runion, who advised and exerted influence over his daughter in connection with the business of R & E. The suit alleges that the Defendants violated the Tennessee Consumer Protection Act, T.C.A. Title 47, Chapter 17, resulting in damages to Prudential because a real estate transaction did not close as a result of misstatements made by the individual Defendants, thereby causing Prudential to lose a commission it otherwise would have received. After a plenary trial the Chancellor found in favor of the Plaintiff and awarded it $147,000 in compensatory damages; $97,000 in attorney fees; and $45,000 in pre-judgment interest. We reverse and dismiss.
Hamilton
Court of Appeals
Leah Miller vs. Gary Hill E2002-02018-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Wheeler A. Rosenbalm
Leah Michelle Miller, a minor, was injured while attempting to dismount a trampoline in the yard of a two-story duplex. Her parents, Robert G. Miller and Brenda Gail Miller ("the plaintiffs"), rented the lower unit of the duplex. The Millers sued their landlords, Gary Boyd Hill and Martha Hill ("the Landlords"). They also named as defendants the occupants of the upstairs unit, Steve Cooper and Tanya Caldwell. The suit against these latter two defendants was based upon their ownership of the trampoline. The Landlords moved for summary judgment. They essentially argued that they owed no duty of care to the plaintiffs or their child with respect to the trampoline. The trial court granted the motion and entered a final judgment pursuant to Tenn. R. Civ. P. 54.02. We affirm.
Knox
Court of Appeals
Cynthia Lee Bratton vs. Michael Wayne Bratton E2002-00432-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Thomas R. Frierson, II
In divorce action the trial court granted divorce, refused to enforce a postnuptial agreement, divided marital property, awarded alimony and child support. On appeal, we affirm.
Hamblen
Court of Appeals
Kevin Haney vs. Brad Copeland E2002-00845-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Sharon J. Bell
Kevin C. Haney and his wife, Marilyn Sue Melhorn ("the buyers"), purchased a retail business from Brad Copeland ("the seller") for $200,000. When their business failed, the buyers sued the seller for rescission and, in the alternative, for compensatory and punitive damages, alleging fraud and breach of contract. Following a bench trial, the buyers were awarded incidental and punitive damages totaling $99,053. The buyers appeal, arguing that they were entitled to additional damages equal to the amount of the purchase price. We affirm.
Knox
Court of Appeals
Elizabeth Whitaker vs. Lawson Whitaker E2002-00847-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Jacqueline E. Schulten
In this post-divorce case, Lawson S. Whitaker, III ("Father") filed a complaint against Elizabeth Donahue Whitaker ("Mother"), seeking to hold her in contempt of court for depriving him of visitation privileges and parenting time with the parties' minor daughter, Grace Anne Whitaker (DOB: September 6, 1996) ("the child"). In response, Mother filed, inter alia, a counterclaim for contempt and for modification of the parties' Parenting Plan. The trial court found a substantial and material change in circumstances justifying a modification of the Parenting Plan. In addition, the trial court held Father in contempt due to his failure to follow the court's prior orders and for harassing Mother. Father appeals both the modification and the court's finding of contempt. Mother seeks attorney's fees for this appeal. We affirm and remand to the trial court for that court to set attorney's fees for Mother in connection with this appeal.
Hamilton
Court of Appeals
Ferryl McClain vs. Richard McClain E2002-00913-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: John S. Mclellan, III
This is a divorce case. The trial court dissolved the parties' marriage based upon a stipulated ground for divorce; divided the marital property; and awarded Richard Perry McClain ("Father") primary physical custody of the parties' two minor children. Ferryl Theresita McClain ("Mother") appeals the grant of custody to Father. In addition, she raises several procedural issues. We affirm.
Sullivan
Court of Appeals
Frances Jones ex rel. Nell Hampton vs. LaFollette Nursing Home E2002-01183-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Conrad E. Troutman, Jr.
Frances B. Jones, on behalf of her mother, Nell Hampton, sues LaFollette Nursing Home, alleging Ms. Hampton was entitled to damages for improper care given to her while a resident patient there. The Trial Court granted a summary judgment in favor of the Nursing Home upon finding that Ms. Hampton's claim was barred by the applicable statutes of limitations and that she introduced no proof to rebut the Nursing Home's proof that they met the appropriate standard of care in ministering to Ms. Hampton. We dismiss the appeal.
Campbell
Court of Appeals
Jackie Wright & Kimberly Green vs. Azalea Rains E2002-01107-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: William H. Russell
Cager M. Casey ("Deceased") executed a revocable inter vivos trust agreement in July of 1992. The trust named a number of family members and friends as beneficiaries ("Appellees"). In January of 1999, Deceased executed a will. While this will does not specifically reference the trust, it does direct Deceased's PaineWebber stock be sold at his death and the proceeds given to Jackie L. Wright, Kimberly A. Green ("Appellants") and other members of the Wright family. Deceased owned no stock in PaineWebber. However, the trust was administered by UBS PaineWebber, Inc. ("PaineWebber"). Appellants submitted the 1999 will for probate and were granted letters testamentary. PaineWebber refused to turn over the trust investments absent court order. Appellants sued Appellees and PaineWebber. After trial, the Probate Court entered its judgment on November 29, 2001, holding the 1999 will did not alter the trust and the trust would, by its terms, distribute the trust assets to the trust beneficiaries. Appellants appeal the November 29, 2001 judgment. We affirm.
Loudon
Court of Appeals
Wanda F. Cherry, et al vs. First State Bank E2002-00981-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Ben W. Hooper, II
Wanda F. Cherry and Daniel R. Greene ("Plaintiffs") are the owners of property located on the parkway in Pigeon Forge. Wayne Burroughs ("Burroughs") owned property adjacent to the Plaintiffs' property, but Burroughs' property did not adjoin the parkway. Burroughs leased Plaintiff's property and used their property and his property to operate a business. During this time, Burroughs borrowed money from First State Bank ("Defendant"). Burroughs' leasehold interest in Plaintiffs' property was part of the collateral for this loan. After Burroughs filed for bankruptcy, his leasehold interest in Plaintiffs' property was sold at auction. Defendant was the highest bidder at the auction. Defendant paid rent for a period of time, but then stopped paying rent. Plaintiffs sued for past due rent. The Trial Court granted summary judgment to Plaintiffs and awarded damages totaling $127,968.60. Defendant appeals the grant of summary judgment to Plaintiffs. We affirm.
Sevier
Court of Appeals
Taylor & Fleishman vs. Kenneth Seaton E2002-00075-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Sharon J. Bell
This is a suit to recover a contractual attorney fee. By virtue of circumstances plaintiff Dudley Taylor had the exclusive standing to contest a petition for the involuntary bankruptcy of Taylor and Associates, LLP, from whom defendant and five other individuals had received preferential payments which were required to be returned to the Trustee if the bankruptcy was approved. Conversely, if the bankruptcy was not approved, the defendant and others similarly situated would retain the preferential payments. The plaintiffs had invested a substantial sum with Taylor and Associates, LLP, but had received no preferences. Dudley Taylor devised a plan whereby, for a fee, he would intervene in the bankruptcy and oppose it, and if he were successful the defendant would retain the preferential payments. The defendant proposed a contract by which the plaintiff, for a non-refundable up-front fee of $100,000.00, and a $200,000.00 additional fee contingent upon success, agreed to oppose the bankruptcy as a party litigant. He was successful, but the defendant refused to pay the fee, asserting the invalidity of the contract on various grounds, including ethical considerations. The Chancellor allowed a recovery. We affirm.
Knox
Court of Appeals
In Re: Estate of Donald Henderson, Jeff Henderson vs. Kenneth Henderson E2002-01155-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Edwin C. Harris
Donald Ben Henderson ("Deceased") died in 1998. Jeff Henderson ("Appellant") is the Deceased's grandson. Kenneth Henderson ("Appellee") is the Deceased's son. Appellant and Appellee each submitted documents for probate purporting to be the last will and testament of the Deceased. In total, three wills and a revocation were filed with the Probate Court. The Probate Court entered its Order of Probate on October 18, 2001, holding that none of the three documents submitted should be admitted to probate as the Deceased's will. Based upon this determination, the Probate Court held the Deceased died intestate. More than thirty days after October 18, 2001, Appellee filed a motion to excuse the administrator ad litem and requested he be appointed personal representative of the estate. Appellant opposed the motion and filed a will contest. The Probate Court's order of April 23, 2002, appointed Appellee personal representative of the estate and stated its earlier order holding the Deceased died intestate was a final order. Appellant appealed. Appellee argues this Court lacks jurisdiction to hear the appeal because the notice of appeal was filed late. We hold the notice of appeal was not filed timely. We, therefore, are without jurisdiction to hear this appeal and, accordingly, dismiss the appeal.
Monroe
Court of Appeals
Nancy Webber vs. Gary Webber E2002-01355-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: William E. Lantrip
The Trial Court held it had jurisdiction over marital property and alimony. Husband argued since the divorce was granted in Nevada, the Nevada Decree was res judicata on these issues. We affirm.
Peter Zabaski v. Mary Ann Zabaski M2001-02013-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Marietta M. Shipley
The trial court granted a divorce to the parents of an only child with a history of severe medical problems, and awarded them joint custody. The wife contends on appeal that the trial court's order of custody and visitation was not in the child's best interest. She also argues that the court erred by setting the husband's child support obligation too low, and by failing to award her alimony in futuro. We affirm the trial court.
Davidson
Court of Appeals
James Staggs v. Lori Staggs M2001-01192-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Leonard W. Martin
The trial court transferred custody of the parties' two children from the mother to the father. The mother argues on appeal that there was no change of circumstances to support a change of custody, and no proof that the change would be in the best interest of the children. We affirm the trial court.
F. T. Greer v. Joseph Marci M2001-02536-COA-R3-CV
Authoring Judge: Judge Thomas W. Graham
Trial Court Judge: Tom E. Gray
This appeal arises from the denial of the Chancery Court of Sumner County of Plaintiffs' request for an injunction. The dispute involves the construction of a brick entranceway which connects a county road to Defendants' driveway easement over the Plaintiffs' property. The entranceway lies within the "metes and bounds" of a county road. The Chancellor refused to grant an injunction ordering removal of the entranceway holding that the county was the only party with standing to seek removal of obstructions within the right-of-way of a county road. We disagree with the Chancellor and find that the Plaintiffs own fee simple title to the pertinent portion of the right-of-way and therefore have standing to assert their ownership rights independent of the county. We therefore reverse the finding of the Chancellor and remand the case for further proceedings.
Sumner
Court of Appeals
City of Oak Hill v. AAMP M2001-00688-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Carol L. Mccoy
This appeal concerns the City of Oak Hill's efforts to enforce its exclusively residential zoning restrictions over a parcel of land situated at the city's eastern border. The city appeals the trial court's finding that "parcel 109" was located outside of Oak Hill's city boundary and, therefore, not subject to the city's zoning ordinances. We affirm the action of the trial court.
Davidson
Court of Appeals
Herman Howard. v. American Industries Services M2001-02711-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Ellen Hobbs Lyle
The Chancery Court of Davidson County dismissed the complaint in this case for the plaintiffs' failure to respond to discovery requests. The plaintiffs assert on appeal that the chancellor abused her discretion. We affirm the chancery court.
Davidson
Court of Appeals
James Pemerton & Deborah Pemerton v. Beauty Wall Painting M2001-01638-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Carol L. Soloman
This is a breach of warranty case. The plaintiff homeowners contracted with the defendant painter to have their home painted. The contract included a one-year warranty on labor and materials. After the work was completed, the paint began to peel, blister, and separate from the wood siding. The homeowners sued the painter under the warranty. The trial court found that the homeowners complained of the problems within the one-year warranty period. The trial court awarded the homeowners damages for the amount paid to the painter, substantial damages for repairs, and discretionary costs. On appeal, the painter argued that the trial judge failed to properly understand the testimony of the parties regarding the painter's actions after being informed of the paint problems, and therefore, improperly discredited the painter's testimony with regard to the issue of the date the homeowners told the painter about the defective work. We affirm, finding that the defendant painter failed to show any basis for reversing the credibility determination of the trial court.
