Theo Kampert, et al. v. Valley Farmers Cooperative, et al.
We agreed to hear this extraordinary appeal in order to decide whether the proper venue for a case involving the breach of a construction contract is in the county named in the forum selection clause of the contract, or in the county where the realty is located upon which the construction took place. We hold that the forum selection clause determines the proper venue, because the underlying action cannot fairly be characterized as an action for injury to real property and is, thus, a transitory action. |
Giles | Court of Appeals | |
Performance Food Group of Georgia, Inc., d/b/a PFG Milton's vs. Healthlink, LLC., Healthlink Srvices, LLc. vs. HCC Healthcare of Charlotte, LLC., et al
Plaintiff brought this action against defendant for an unpaid debt. Both parties moved for summary judgment and the trial court granted plaintiff's summary judgment and denied defendant's summary judgment. On appeal, we affirm the trial court's decision. |
Bradley | Court of Appeals | |
Federal Insurance Company, A/S/O Robert and Joanie Emerson vs. Martin Edward Winters, D/B/A Winters Roofing Company
Plaintiff insurer of insured brought this action as a subrogee of the insureds, who had been paid under plaintiff's policy for a fire loss to their home. The insureds had employed a roofer to replace their roof, whose subcontractor caused the fire which destroyed the home. Plaintiff brought this action to recover from defendant roofer who filed a Motion for Summary Judgment and the trial court ruled defendant could not be held liable in tort for the negligent acts of his subcontractor under the facts of this case, and plaintiff could not recover under the theory of contract, because plaintiff could not show that the loss was caused by the contractual services or foreseeable. On appeal, we hold that summary judgment was inappropriate, because under contract law the defendant had a non-delegable duty to see that the work he was contractually obligated to perform was done in a careful, skillful and workmanlike manner. The case is remanded with instructions to proceed in accordance with this Opinion. |
Hamilton | Court of Appeals | |
Gregory M. Nicholson v. Tonya S. Nicholson
In this divorce case, Wife/Appellant appeals the trial court's division of marital property and denial of her request for alimony. Finding that the trial court correctly valued the dental practice and properly awarded same to Husband/Appellant, we affirm that portion of the trial court's order. However, because the trial court did not specifically determine whether certain debt was separate or marital debt, and, consequently, did not allocate that debt, we vacate the trial court's division of marital property, and remand for a determination of the nature of the marital debt, and division of same. Because the trial court did not meet the requirements of Tenn. Code Ann. _ 36-5-121(i), we vacate the trial court's denial of alimony, and remand for further proceedings concerning Wife/Appellant's need for alimony, and Husband/Appellee's ability to pay same. Affirmed in part; vacated in part, and remanded. |
Rutherford | Court of Appeals | |
Bethany (Bumgarner) Schroedel vs. Timothy Adam Bumgarner
Bethany (Bumgarner) Schroedel ("Mother") and Timothy Adam Bumgarner ("Father") are the divorced parents of one minor child ("the Child"). In October of 2007, Mother filed a petition alleging, among other things, that Father was refusing to allow Mother her visitation with the Child. Mother's petition sought, in part, to modify the parenting plan to name Mother as the Child's primary residential parent. After a trial, the Trial Court entered an order on June 29, 2009 finding and holding that a change of circumstances existed that affected the Child's well-being in a meaningful way, but not one sufficient to justify a change in primary residential custody. The trial court's June 29, 2009 order did modify the parenting plan to allow Mother greater visitation. Mother appeals to this Court raising an issue regarding the trial court's refusal to change primary residential custody, and an issuec regarding the trial court's finding her in contempt. We affirm the trial court's order as to the parenting plan, vacate the trial court's order finding Mother in contempt, and remand for further proceedings in compliance with this Opinion. |
Hamblen | Court of Appeals | |
Julie-Cristie (Barone) Neal vs. Veronica Monde Barone, et al
Julie-Cristie (Barone) Neal ("Step-Daughter") brought an action to quiet title to a nearly three hundred acre farm in Cumberland County, Tennessee, against Veronica Monde Barone ("Ex-Wife") and Anthony F. Barone ("Father"). She primarily asserts that she has acquired adverse possession rights in the entire farm pursuant to Tenn. Code Ann. _ 28-2-103. The disputed property was also the subject of prior litigation in a circuit court proceeding involving the enforcement of a foreign judgment and fraudulent conveyance claims against Father by Ex-Wife as a judgment creditor. In the present action Ex-Wife moved for summary judgment on several theories including the assertion that filing a lien lis pendens barred Step-Daughter's adverse possession claim. The trial court denied the motion for summary judgment on all grounds. Ex-Wife filed a motion asking the trial court for permission to submit an application for interlocutory appeal on one issue raised on summary judgment _ whether the lien lis pendens tolled the seven-year adverse possession statute found in Tenn. Code Ann. _ 28-2-103 during the circuit court proceeding. The trial court granted that motion and we likewise granted the application for interlocutory appeal on the asserted issue. We reverse the trial court's judgment on the sole issue presented to us. |
Cumberland | Court of Appeals | |
Tina Marie Hodge v. Chadwick Craig
This is a fraud claim between ex-spouses. While the petitioner mother and the respondent were dating, the mother became pregnant, and she told the respondent that the child was his. Consequently, she and the respondent married, and the child was born during the marriage. Years later, the parties divorced, and the respondent paid child support to the mother. After several years, the respondent obtained a DNA test, which revealed that he is not the child's biological father. After he told the mother of the test results, she filed a petition requesting a court-ordered paternity test and modification of the parenting plan. The respondent filed a counter-petition, alleging negligent and/or intentional misrepresentation by the mother for falsely representing that he was the child's biological father. After a bench trial, the trial court awarded the respondent compensatory damages for past child support, medical expenses, and insurance premiums paid for the child, compensatory damages for emotional distress, and attorney fees. The mother now appeals. We conclude that under Tennessee statutes, the respondent cannot recover the past child support, medical expenses, and insurance premiums, as this would be a retroactive modification of a valid child support order. We find that the remaining damages for emotional distress cannot be awarded for the tort of fraud and misrepresentation, because such damages are non-pecuniary. Therefore, we reverse the decision of the trial court. |
Maury | Court of Appeals | |
Stephen Ball v. Theodore Shockley
This is an appeal from the denial of a Rule 60.02 motion. The plaintiff sued the defendant for injuries arising out of a car accident. Several months later, the defendant filed a motion for summary judgment. The motion was not opposed, and was granted. The plaintiff later retained new counsel and filed a motion for relief pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. The trial court denied the plaintiff's motion for relief, commenting that even if the order were set aside, it would nevertheless grant the motion. The plaintiff now appeals. We affirm, finding no abuse of discretion by the trial court. |
Shelby | Court of Appeals | |
Lynne Pilkerton Hudson v. Foster Eugene Hudson, Sr.
This is an interlocutory appeal involving intercounty transfer of post-divorce matters. The divorce was granted in Carroll County, Tennessee. The mother and the parties' minor child reside in Davidson County, Tennessee. The father once resided in Carroll County, but has since moved to Georgia. The father filed a motion in the Carroll County trial court seeking modification of child support, alimony, and the parenting plan. The mother filed a request to transfer the case to Davidson County. The Carroll County trial court granted the transfer as to the child support and parenting plan issues, but denied transfer as to the alimony issues. Both the trial court and the appellate court granted the mother's request for permission for an interlocutory appeal. We affirm in part, reverse in part, and remand, finding that the entire case must be transferred to Davidson County. |
Carroll | Court of Appeals | |
Joseph Patrick Hyde v. Amanda Bradley
This is an appeal from the trial court's denial of Father/Appellant's petition to be named the minor child's primary residential parent or, in the alternative, to increase his parenting time. The trial court denied Father's petition, and also denied Father an award of attorney's fees and costs under Tenn. Code Ann. _ 36-5-103(c). Finding that Father failed to meet his burden to show a material change in circumstances sufficient to warrant a change in the child's primary residential parent and/or the child's residential schedule, and that the trial court did not abuse its discretion in denying attorney's fees and costs, we affirm. |
Sumner | Court of Appeals | |
In Re: Adoption of Logan A.S.; John W.W., Jr., Stephanie L. W., and Lindsey B. W. v. Glenn S.
This appeal involves the termination of parental rights. The child at issue was born to teenage parents who never married and have long-term, continuing problems with substance abuse. As a result of his substance abuse, the father has been in and out of prison for much of the child's life. The child has lived with the petitioners, the maternal grandfather and maternal step-grandmother, who filed a petition to terminate the parental rights of both parents and adopt the child. The mother subsequently joined in the petition. After a trial, the trial court terminated the father's parental rights, finding abandonment by, inter alia, engaging in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child. The father now appeals. We affirm, finding that the undisputed evidence supports the trial court's finding on the ground of abandonment by wanton disregard, and that termination of the father's parental rights is in the child's best interest. |
Shelby | Court of Appeals | |
James Fortune v. Unum Life Insurance Company of America, et al.
This appeal arises out of an alleged wrongful denial of long term disability benefits. The plaintiff/appellant filed suit asserting multiple causes of action against an insurance company that contracted to provide long term disability insurance to employees of the City of Germantown. The defendants/appellees, the insurance company and its parent corporation, moved for summary judgment arguing, inter alia, that the applicable statutory and contractual limitations periods barred each of the plaintiff's causes of action. The trial court agreed and granted summary judgment in favor of the defendants. We affirm. |
Shelby | Court of Appeals | |
Joseph Patrick Hyde v. Amanda Bradley
This is an appeal from the trial court's denial of Father/Appellant's petition to be named the minor child's primary residential parent or, in the alternative, to increase his parenting time. The trial court denied Father's petition, and also denied Father an award of attorney's fees and costs under Tenn. Code Ann. _ 36-5-103(c). Finding that Father failed to meet his burden to show a material change in circumstances sufficient to warrant a change in the child's primary residential parent and/or the child's residential schedule, and that the trial court did not abuse its discretion in denying attorney's fees and costs, we affirm. |
Sumner | Court of Appeals | |
Maxwell Medical, Inc., Successor in Interest to Maxwell Medical, LLC, v. Loren L. Chumley, Commissioner of Revenue, State of Tennessee
The trial court determined that glucometers sold by Plaintiff taxpayer during the tax period January 1, 2001, through September 30, 2003, were not exempt from sales and use tax under Tennessee Code Annotated _ 67-6-314(5)(1998). The trial court entered summary judgment in favor of the Commissioner of Revenue. Plaintiff taxpayer appeals. We affirm. |
Davidson | Court of Appeals | |
Yuko Garen v. Raymond McClure Bowman, III d/b/a BMR Constructors
This case involves an unusual procedural history and requires us to examine the consequences of an oral motion for voluntary dismissal for which a written order was not entered. We have determined that the trial court did not err in its rulings. |
Montgomery | Court of Appeals | |
Roger A. Miller vs.Kimberly Summers Welch
Kimberly Summers Welch ("Mother") gave birth to Aaron A. (the "Child") on July 14, 2004. Prior to the birth, Roger A. Miller ("Father") filed a petition seeking to establish paternity. After the Child was born and a DNA test established that Father was the biological father, Father was ordered to pay $235 per month in child support. This amount was specifically held not to be presumptively correct and Mother was allowed additional time to pursue her claim that Father's income was such that he should pay more child support. The trial court eventually found that Father was capable of earning or presently was earning $40,000 annually. Father also was ordered to pay 10% of Mother's attorney fees. Father appeals both determinations. Mother requests an award of attorney fees incurred on appeal. We affirm the judgment of the trial court and award Mother her attorney fees incurred in this appeal. |
Anderson | Court of Appeals | |
Apac-Atlantic, Inc. et al vs. Samuel Robert Morton d/b/a Morton Construction
The plaintiff, APAC_Atlantic, Inc. ("APAC"), filed this lawsuit against the defendant, Samuel Robert Morton d/b/a Morton Construction, for breach of contract. APAC moved for a default judgment after Mr. Morton failed to answer APAC's complaint within the allowable time limit established by Tenn. R. Civ. P. 12.01. The trial court entered a default judgment, awarding APAC $106,776.20 in damages. Thereafter, Mr. Morton filed a motion to have the default judgment set aside under Tenn. R. Civ. P. 55.02. After a hearing, the trial court determined that Mr. Morton was not entitled to relief from the final judgment. Mr. Morton appealed. We affirm. |
Blount | Court of Appeals | |
The Hartford vs. James R. Wyrick
The defendant, acting pro se, appeals the entry of a default judgment entered against him in a subrogation action. After a thorough review of the record before us, we affirm the ruling of the trial court. |
Knox | Court of Appeals | |
In Re: The Estate of Elma Ward
This case involves the validity of a holographic will. Appellant, son of the decedent, appeals the trial court's finding that the holographic will was valid, arguing that the document did not comply with the statutory requirements of Tenn. Code Ann. _32-1-105. Finding that the presence of more than one signature, the location of the signatures, and the fact that the document contains both handwritten and typewritten sections does not negate the validity of a holographic will, we affirm. |
Madison | Court of Appeals | |
Bee Deselm, et al. v. Tennessee Peace Officers Standards and Training Commission, et al.
This is an appeal of a lawsuit by Knox County citizens to have a former county sheriff decertified as a peace officer. The plaintiffs' first lawsuit was dismissed for failure to exhaust administrative remedies. The plaintiffs then pursued administrative remedies but were denied administrative relief based in part on an administrative finding that they did not have standing to seek the relief requested. After that, the plaintiffs filed this lawsuit, seeking judicial review of the denial of their request for administrative relief. The trial court held that the plaintiffs did not have standing to sue for declaratory relief, but did have standing under Tennessee Code Annotated _ 4-5-322 to obtain judicial review of the administrative decision not to investigate the decertification of the former sheriff. Subsequently, the trial court entered a judgment in favor of the plaintiffs on this claim, remanding the case to the administrative body with instructions to hold a contested case hearing on the decertification of the former sheriff. The plaintiffs and the administrative body both appeal. We affirm in part and reverse in part, concluding that the plaintiffs do not have standing to pursue any of the relief they seek, and dismiss the case. |
Davidson | Court of Appeals | |
Liberty State Bank v. Charles Wayne Smithson
The defendant has appealed from a default judgment granting the plaintiff possession of his 1995 Lincoln Towncar. Because the defendant did not file his notice of appeal within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal. |
DeKalb | Court of Appeals | |
Robert Henry Robinson, Jr. vs. Ann Prevatt Robinson Irons
Robert Henry Robinson, Jr. ("Father") and Ann Prevatt Robinson Irons ("Mother") were divorced in 1998. The parties have two minor children. Although they initially had equal co-parenting time, in March of 1999 Mother was designated as the primary residential parent with Father having weekend co-parenting time. In October of 2007, Father was designated as the primary residential parent due to a threat posed by Mother's husband, John Irons, a suspected arsonist. The trial court held that this threat constituted a material change in circumstances and that it was in the children's best interest for Father to be primary residential parent. In January of 2010, pursuant to a petition to modify filed by Mother, the trial court determined that this threat no longer existed and the absence of the threat constituted a material change in circumstances. The trial court then designated Mother as the primary residential parent. Father appeals claiming there was no material change in circumstances. We affirm the trial court's finding that there was a material change in circumstances. Because the trial court never made a finding as to what was in the children's best interest, we remand this case to the trial court for such a determination. |
Monroe | Court of Appeals | |
David Livingston v. State of Tennessee
Appellant was convicted of "sexual misconduct" in New York in 1988, and was compelled to register as a sex offender in Tennessee in 2008. Upon his registration, the TBI classified appellant as a violent sexual offender, determining that his New York conviction was analogous to rape, a violent sexual offense. appellant contacted the TBI seeking removal from the registry, but his request was denied. He then filed an administrative appeal in the chancery court, but his classification as a violent sexual offender was upheld. We find that the elements of "sexual misconduct" under N.Y. Penal Law _ 130.20 are analogous to the elements of rape as codified in Tennessee Code Annotated section 39-13-503, and therefore, that appellant was properly classified as a violent sexual offender within the meaning of Tennessee Code Annotated section 40-39-202(28). The judgment of the chancery court is affirmed. |
Davidson | Court of Appeals | |
Richard A. Willette, Jr. v. Carroll G. Hulse, et al.
This action arises out of a vehicular accident in which the plaintiff sustained serious personal injury. A complaint was filed on behalf of the pro se plaintiff; however, the complaint was not signed by the plaintiff or a licensed attorney as required by Tenn. R. Civ. P. 11.01. The plaintiff subsequently retained counsel, but the plaintiff's attorney failed to make a written appearance until months later. Moreover, neither the attorney nor the plaintiff signed the complaint to cure the signature deficiency until after the case was dismissed and the statute of limitations had run. The plaintiff then filed a Rule 60.02 Motion for Relief from Judgment or Order based on Excusable Neglect. That motion was denied and this appeal followed. We have determined that the trial court did not abuse its discretion in denying the plaintiff's Rule 60.02 motion; therefore, we affirm. |
Rutherford | Court of Appeals | |
In the Matter of: Shanya A.A. (d.o.b. 2/17/07) A Child Under Eighteen Years of Age
This is a termination of parental rights case. The Department of Children's Services ("DCS") obtained custody of the child at issue under the terms of a protective custody order entered shortly after the child's birth. The juvenile court cited the mother's history with DCS and her history of mental illness as the primary reasons supporting removal. DCS developed two permanency plans with the mother designed to address her mental illness and equip her with the parental skills necessary to care for the child. The mother, however, did not carry out her responsibilities under the plans, take her medication as prescribed, or consistently attend critical mental health ppointments. DCS accordingly petitioned to terminate the mother's parental rights on multiple grounds. After a hearing that the mother did not attend, the court terminated her parental rights on the grounds of abandonment by willful failure to provide financial support, substantial noncompliance with the responsibilities of the permanency plans, and persistence of the conditions that required the child's removal. The mother appeals, arguing that DCS did not make reasonable efforts to reunite her with the child and did not clearly and convincingly prove grounds for termination. We disagree and affirm the decision of the trial court. |
Shelby | Court of Appeals |
