Joe Allen Pennington v. Sonya Rene Pennington
This is the second appeal from the Trial Court's altering the custodial arrangement of the parties' minor child. In the first trial, the Trial Court excluded testimony of the child's stepfather, on the grounds that the mother had not properly noticed the Court and party that the stepfather was a witness. On the first appeal, this Court remanded this case to the Trial Court and directed that the stepfather's testimony be allowed. On remand, the stepfather testified at length, but it was revealed during his examination that he had read the entire evidentiary transcript of the first trial. The Trial Court then ruled that the stepfather's testimony should be stricken, but went ahead and considered his testimony and essentially determined that his testimony did not alter the weight of the evidence as found in the first trial, and affirmed the Court's original award of granting custody to the father. On appeal, we affirm. |
Davidson | Court of Appeals | |
Clyde Richard Aslinger vs. Carrie Lynne Aslinger
This is a divorce case. Father/Appellant appeals the trial court's decision to designate Mother/Appellee the primary residential parent of the parties' two minor children, and the trial court's refusal to enter an order restraining the Mother's paramour from being around the children. This Court concludes that the evidence does not preponderate against the trial court's factual findings, and that the custody decision is not contrary to the children's best interests. We affirm the judgment of the trial court. |
Hamilton | Court of Appeals | |
Michael Clawson et al vs. Michael L. Burrow, et al
Rachel M. Clawson ("the Decedent") was an employee of Summers-Taylor, Inc. ("the Employer") when she was killed in a tragic automobile-pedestrian accident. A vehicle driven by Michael Burrow veered off Highway 91 in Carter County and struck her. She had concluded her job duties for the day and was at the rear of her personally-owned truck visiting with co-workers and talking on a cell phone. The Decedent's truck was parked on the side of Highway 91 in an area approved by the Employer for employee parking. Michael Clawson and Sherry Clawson, the Decedent's parents ("the Parents"), filed this wrongful death action against Burrow and the Employer. The Employer filed a motion for summary judgment, arguing that on the undisputed facts the Decedent's death arose out of and occurred in the course and scope of her employment. The trial court agreed and entered an order granting the Employer summary judgment. The Parents appeal. We affirm. |
Carter | Court of Appeals | |
Jimmy E. Holt et al vs. Shawn R. Wilmoth
Shawn R. Wilmoth ("the Buyer") approached Jimmy E. Holt about buying a building Mr. Holt owned jointly with his wife Betty L. Holt (collectively "the Sellers"). The Sellers advised they were only willing to sell the building if they could also sell the inventory from their lamp business that was stored in the building. The Buyer agreed to purchase the building and the inventory. The purchase of the inventory was accomplished through a promissory note in the amount of $250,000. Subsequently, the Buyer paid $150,000 toward the note but refused to pay the balance of $100,000. The Sellers filed suit to collect the balance owed on the note. In his answer and counterclaim, the Buyer alleged that Sellers represented the value of the goods to be $500,000, but that he only realized $65,000 through liquidation of the goods and that $65,000 was the true value of the inventory. The Buyer alleged that the figure he was given constituted an intentional misrepresentation and, when compared to the amount he recovered from the goods, amounted to a failure of consideration. The Buyer asked to recover damages that included the difference in the amount he paid on the note and the amount he realized out of the liquidation, that difference being $85,000. After a bench trial, the trial court determined that there was no intentional misrepresentation and dismissed the counterclaim. Nevertheless, the trial court refused to award the Sellers a recovery on the unpaid balance of the note. The court stated that it was leaving the parties where it found them. The Sellers appeal, raising issues; the Buyer, by way of his own issue, challenges the trial court's refusal to award him damages. We reverse and remand the case to the trial court with instructions to enter a judgment in favor of the Sellers and consider their prayer for prejudgment interest. |
Jefferson | Court of Appeals | |
Cole Bryan Howell, III et al vs. Cheryl Ryerkerk, et al
Cole Bryan Howell, III ("the Grandson"), is the son of Cole Bryan Howell, Jr. ("the Father"), who in turn is the son of Margaret Lyons Howell ("the Grandmother"). The Grandson inherited stock in Howell Nurseries, Inc. ("the Nursery") through the Grandmother's will, which left a block of stock to the Father for life and then to the Father's children. After the Father's death, the Grandson filed this stockholder's derivative action against all persons who acted as directors of the Nursery and the Nursery itself ("the Defendants"), claiming, in essence, that the directors had sold away all of the corporate assets, leaving him with a rather hollow inheritance. The trial court held that the Grandson did not have standing to challenge any transactions that preceded the Father's death because it was only after his death that the Grandson became the owner of the stock. The trial court ordered an accounting as to all monies handled after the Father's death, which the Defendants filed with the court. Over the Grandson's objections, the trial court, on the Defendants' motion, approved the accounting and dismissed the case in its entirety. The Grandson appeals. We vacate the judgment of dismissal and remand for further proceedings. |
Knox | Court of Appeals | |
Monica Villarreal v. Robert Justice
Mother and Father filed separate petitions to modify custody, both alleging a different material change of circumstances. The trial court entered a new parenting plan with custody provisions identical to those in a former parenting plan, but it failed to issue findings of fact and conclusions of law. Because the trial court failed to meet the requirements of Tennessee Rule of Civil Procedure 52.01, we vacate the judgment and remand for further proceedings. |
Rutherford | Court of Appeals | |
Lamar Tennessee, LLC d/b/a Lamar Advertising of Tennessee and TLC Properties, Inc. v. Murfreesboro Board of Zoning Appeals and City of Murfreesboro, Tennessee
This appeal concerns a billboard permit. The petitioner billboard owner applied to the respondent city for a permit to tear down and replace a grandfathered billboard. The city granted a permit for an indirectly illuminated billboard. The owner then built a billboard with a digital display face. The city revoked the owner’s permit because, inter alia, the sign actually constructed varied from the permit. The owner appealed to the city’s board of zoning appeals, which upheld the city’s revocation of the billboard permit. The billboard owner filed a petition for a writ of certiorari, seeking judicial review of the revocation. The trial court dismissed the billboard owner’s petition, finding that the city’s revocation of the permit was valid because the billboard erected by the owner was not covered by the permit. The billboard owner now appeals. We affirm. |
Rutherford | Court of Appeals | |
Stephen S. Patterson, II vs. Suntrust Bank
Stephen S. Patterson, II, filed a complaint against SunTrust Bank arising out of unauthorized charges made against his checking account with a debit card alleged to have been stolen. When SunTrust failed to timely respond to the complaint, Patterson moved for a default judgment. Following a hearing and the filing of briefs, the trial court granted the motion. The court later denied SunTrust's motion for relief from the court's order, which order recited that "[t]he plaintiff is granted a judgment by default." In the "judgment by default" order, the court had not addressed the plaintiff's request for damages. On a subsequent date, the case proceeded to a hearing on the issue of damages. At the conclusion of the hearing, the court awarded Patterson damages of $32,937.44. On appeal, SunTrust contends that the trial court erred in entering a default judgment and in failing to set aside that judgment. We vacate the trial court's final judgment. Case remanded for further proceedings. |
Blount | Court of Appeals | |
State of Tennessee, Ex Rel., Misty D. Murphy v. Nicholas A . Franks
Appellant/Father appeals from the trial court’s finding that he was in contempt for failure to pay child support. After reviewing the record, we find that the evidence preponderates against the trial court’s findings of fact. The trial court’s finding of contempt is reversed. |
Lauderdale | Court of Appeals | |
Lula McGregor, et al. v. Christian Care Center of Springfield, L.L.C.
Shortly after a sixty-one year old woman signed a nursing home admission agreement, she fell and broke her ankle. She sued for negligence, and the defendant nursing home moved the court to compel her to bring her claim to arbitration in accordance with a separate agreement she had signed as a part of the admissions process. The trial court found that the arbitration agreement was a contract of adhesion and that it would be unconscionable to enforce it. The nursing home filed a direct appeal to this court pursuant to Tenn. Code Ann._ 29-5-319. Because the terms of the agreement favor the nursing home by giving it a judicial forum, we find the arbitration agreement unconscionable. Therefore, we affirm the trial court. |
Robertson | Court of Appeals | |
Linnell Richmond v. Tennessee Department of Correction
This appeal involves subject matter jurisdiction over a petition for a writ of certiorari. The petitioner inmate was convicted of a disciplinary offense by the Department of Correction disciplinary board. The inmate timely filed a petition in the trial court, challenging the legality of the board's decision. The petition was not sworn. The respondent Department of Correction filed a motion to dismiss for failure to comply with the statutory verification requirement for such a petition. Subsequently, after the limitations period had lapsed, the petitioner inmate filed a motion to amend the petition to satisfy the verification requirement. The trial court found that it did not have subject matter jurisdiction to adjudicate the motion to amend and dismissed the petition. The petitioner now appeals. We affirm. |
Davidson | Court of Appeals | |
William Cameron Cone v. Georgia Elise Dunn Cone
In this post-divorce custody dispute, mother challenges the trial court's decision to change the primary residential parent to father. The trial court found mother's allegations of sexual abuse to be unfounded, and the evidence does not preponderate against the trial court's determination. We find no error in the trial court's modification of the primary residential parent or in its denial of mother's requests for post-judgment relief. We therefore affirm. |
Robertson | Court of Appeals | |
Jeremy White v. Commissioner Gayle Ray, et al.
This appeal arises out of the disciplinary conviction of a prisoner for drug possession. The prisoner filed a petition for writ of certiorari with the chancery court seeking to review the actions of the prison disciplinary board. The chancery court issued the writ and determined that the prisoner was not entitled to relief. We affirm. |
Lake | Court of Appeals | |
Rodney K. Matthews v. Sophia D. Matthews
The trial court granted the wife a divorce after a marriage of almost twenty years, divided the marital property, and awarded the wife temporary alimony. The husband argues on appeal that the court erred in the property division by impermissibly taking his fault into consideration and by dividing his military retirement between the parties without considering the effect of their long separation on the equities of that division. The husband also argues that the court impermissibly awarded the wife alimony in solido out of his future earnings rather than out of his separate property. After thoroughly examining the record, we have found no evidence that the trial court based its property division on the husband’s fault, and we do not find that it abused its discretion in dividing the military retirement as it did. We also find no indication that the trial court intended its monthly alimony award to be considered alimony in solido. We accordingly affirm the trial court, but modify its decree to specify that the award of monthly alimony is in the form of transitional alimony and conversely that the award of attorney fees is alimony in solido . |
Montgomery | Court of Appeals | |
Great American Insurance Company of New York et al. v. Federal Insurance Company et al.
This is a dispute between two insurance companies, each of which provided liability insurance for a Captain D’s restaurant in Mississippi. The defendant, Federal Insurance Company, provided the primary coverage for Captain D’s with policy limits of $1,000,000. The plaintiff, Great American Insurance Company of New York, provided excess coverage for the benefit of Captain D’s. When an action was filed against the insured in Mississippi for serious and permanent injuries sustained by a 15 year-old minor at a Captain D’s, Federal provided the defense for Captain D’s. The jury returned a verdict of $20.8 million against Captain D’s. The next day, Federal sent a letter to its insured, Captain D’s, and to the excess carrier, Great American, offering to pay its policy limits of $1,000,000 toward the judgment; however, Federal’s “offer to pay” was not communicated to Foradori, the plaintiff in the Mississippi action. Federal appealed the $20.8 million Mississippi judgment on behalf of Captain D’s, but the judgment was affirmed. Post-judgment interest of $2,269,169 accrued during the appeal. When the judgment became final, Federal paid its policy limits of $1,000,000, but no interest. Great American paid the balance of the judgment plus all of the post-judgment interest. |
Davidson | Court of Appeals | |
In the Matter of: Haven A. B.
The juvenile court granted emergency custody of a four-year-old girl to her paternal aunt and uncle and subsequently determined that the child was dependent and neglected. More than two years after obtaining custody, the aunt and uncle petitioned the trial court to terminate the parental rights of the child's mother and father. The court conducted a four-day hearing before terminating their parental rights on the grounds of abandonment and persistence of conditions. Only the mother appealed. We affirm the termination of her rights on the ground of persistence of conditions. |
Davidson | Court of Appeals | |
Water Authority of Dickson County v. Gene C. Hooper, Vera S. Hooper, and Dickson County, Tennessee
This is a condemnation case in which the Water Authority of Dickson County acquired an easement by eminent domain for the purpose of installing a subsurface water transmission line. The Water Authority's ability to take the land is not in question; this appeal only involves the amount of compensation to which the landowners are entitled. Following a trial without a jury, the court awarded $6,300.00 for the taking of the permanent easement and incidental damages. The Water Authority appeals. Finding error, we vacate the judgment of the court and remand for further proceedings. |
Dickson | Court of Appeals | |
Water Authority of Dickson County v. Charles B. Hooper, Gene C. Hooper, and Dickson County, Tennessee
This is a condemnation case in which the Water Authority of Dickson County acquired an easement by eminent domain for the purpose of installing a subsurface water transmission line. The Water Authority's ability to take the land is not in question; this appeal only involves the amount of compensation to which the landowners are entitled. Following a trial without a jury, the court awarded $12,526.56 for the taking of the permanent easement and incidental damages. The Water Authority appeals. Finding error, we vacate the judgment of the court and remand for further proceedings. |
Dickson | Court of Appeals | |
Stephen George Beem v. Joan Nan Gallina Beem
This appeal involves a motion to set aside a marital dissolution agreement. After a long marriage, the parties filed cross-petitions for divorce. After mediation, they entered into a marital dissolution agreement settling division of the considerable martial estate. The parties presented the MDA to the trial court, and it was approved and incorporated into the final decree of divorce. Several weeks later, the husband filed this pro se petition to have the MDA set aside, claiming that, at the time it was signed, he was not mentally competent to enter in to such an agreement. The husband's motion was denied, and the wife was awarded attorney fees pursuant to the terms of the MDA. The husband now appeals. We affirm. We hold that the evidence supports the factual finding below that the husband was mentally capable of understanding the consequences of the MDA, and we find no abuse of its discretion in the trial court's denial of the husband's motion to set it aside. We also affirm the award of attorney fees to the wife, and award attorney fees for this appeal. |
Shelby | Court of Appeals | |
Rodney K. Matthews v Sophia D. Matthews
The trial court granted the wife a divorce after a marriage of almost twenty years, divided the marital property, and awarded the wife temporary alimony. The husband argues on appeal that the court erred in the property division by impermissibly taking his fault into consideration and by dividing his military retirement between the parties without considering the effect of their long separation on the equities of that division. The husband also argues that the court impermissibly awarded the wife alimony in solido out of his future earnings rather than out of his separate property. After thoroughly examining the record, we have found no evidence that the trial court based its property division on the husband's fault, and we do not find that it abused its discretion in dividing the military retirement as it did. We also find no indication that the trial court intended its monthly alimony award to be considered alimony in solido. We accordingly affirm the trial court, but modify its decree to specify that the award of monthly alimony is in the form of transitional alimony and conversely that the award of attorney fees is alimony in solido. |
Montgomery | Court of Appeals | |
Lee Masonry, Inc. v. City of Franklin, Tennessee Stansell Electric Company, Inc. v. City of Franklin, Tennessee
Two trade contractors alleged that the City breached its contract with them by failing to take reasonable measures to guard against delays and disruptions by other contractors in the City's coordination, management, and scheduling of the contractors and by failing to pay the retainages they were due. The contractors sought damages for the delays. The City raised three defenses: (1) the "no damages for delays" provision of the contracts; (2) untimely notice of claims by the contractors; and (3) the contractors' acknowledgment and acceptance of time extensions without a reservation for increased compensation in the change orders they executed. The trial court concluded that all three of the City's defenses failed and awarded damages to the contractors. We affirm the trial court's decisions. |
Williamson | Court of Appeals | |
Charles C. Burton v. Bill J. Duncan, et al.
The matter at issue is a sliver of land between an old established fence and the centerline of a rural road. The plaintiff and the defendants each contend they own the disputed property.The plaintiff claims his property, which lies west and southwest of the defendants' property, extends beyond an old established fence in a northeasterly fashion to the center line of Old Lincoln Road. The defendants, however, claim their property extends across the road to the old established fence which, the defendants insist, is also where the plaintiff's property ends. Following a bench trial, the trial court found that the "old established fence" referenced in the plaintiff's deed is the boundary line, as the defendants claim, not the centerline of Old Lincoln Road, as the plaintiff claims, and therefore, the defendants own the disputed property. We have concluded that the trial court correctly determined the plaintiff's property stopped at the "old established fence." Thus, we affirm that decision. We, however, have determined that the trial court erred by awarding the disputed property to the defendants. This is because the defendants' deed clearly states that their property stops at the center line of Old Lincoln Road and nothing in the deed suggests their property extends beyond that point. Accordingly, we reverse the trial court's finding that the defendants' property extends beyond the centerline of Old Lincoln Road. As a consequence, neither party has established that they own the disputed property. Furthermore, we have determined that others who are not parties to this action may have a claim to the disputed property; thus, ownership of the disputed property will need to be determined in a subsequent action in which others who are possibly indispensable parties are joined. |
Lincoln | Court of Appeals | |
Great American Insurance Company of New York et al. v. Federal Insurance Company et al.
This is a dispute between two insurance companies, each of which provided liability insurance for a Captain D's restaurant in Mississippi. The defendant, Federal Insurance Company, provided the primary coverage for Captain D's with policy limits of $ 1,000,000. The plaintiff, Great American Insurance Company of New York, provided excess coverage for the benefit of Captain D's. When an action was filed against the insured in Mississippi for serious and permanent injuries sustained by a 15 year-old minor at a Captain D's, Federal provided the [*2] defense for Captain D's. The jury returned a verdict of $ 20.8 million against Captain D's. The next day, Federal sent a letter to its insured, Captain D's, and to the excess carrier, Great American, offering to pay its policy limits of $ 1,000,000 toward the judgment; however, Federal's "offer to pay" was not communicated to Foradori, the plaintiff in the Mississippi action. Federal appealed the $ 20.8 million Mississippi judgment on behalf of Captain D's, but the judgment was affirmed. Post-judgment interest of $ 2,269,169 accrued during the appeal. When the judgment became final, Federal paid its policy limits of $ 1,000,000, but no interest. Great American paid the balance of the judgment plus all of the post-judgment interest. |
Davidson | Court of Appeals | |
State of Tennessee ex rel. The Commissioner of the Department of Transportation v. William H. Thomas, Jr.
This appeal involves subject matter jurisdiction with respect to billboard permits. The defendant's application for a State permit to erect a billboard in Shelby County was denied, so he filed an administrative appeal from this decision. Meanwhile, the defendant proceeded to erect the billboard in Shelby County without a State permit. The State filed this petition in Shelby County to enjoin the defendant from erecting the billboard pending resolution of the administrative appeal. The defendant argued that the State was not entitled to injunctive relief because he had unfairly been denied a State permit. The defendant also filed a counterclaim based on alleged improper conduct by State officials, seeking to enjoin the State from improperly enforcing its regulations against him in all cases in which he had been denied a State billboard permit. The trial court entered an order enjoining the State from improper enforcement of the billboard regulations. Later, after lengthy evidentiary hearings, the trial court ordered the State to grant the defendant State permits for various billboard sites and assumed continuing jurisdiction over certain administrative proceedings in which the defendant had appealed the denial of billboard permits. The State now appeals. We find that, by statute, the trial court in Davidson County has exclusive subject matter jurisdiction over the matters asserted by the defendant in response to the petition for injunctive relief and in his counterclaims. Therefore, we reverse the decision of the trial court based on lack of subject matter jurisdiction, dismiss the counterclaim in its entirety, and remand. |
Shelby | Court of Appeals | |
The Commissioner of the Department of Transportation v. William H. Thomas, Jr.
This appeal involves subject matter jurisdiction with respect to billboard permits. The defendant’s application for a State permit to erect a billboard in Shelby County was denied, so he filed an administrative appeal from this decision. Meanwhile, the defendant proceeded to erect the billboard in Shelby County without a State permit. The State filed this petition in Shelby County to enjoin the defendant from erecting the billboard pending resolution of the administrative appeal. The defendant argued that the State was not entitled to injunctive relief because he had unfairly been denied a State permit. The defendant also filed a counterclaim based on alleged improper conduct by State officials, seeking to enjoin the State from improperly enforcing its regulations against him in all cases in which he had been denied a State billboard permit. The trial court entered an order enjoining the State from improper enforcement of the billboard regulations. Later, after lengthy evidentiary hearings, the trial court ordered the State to grant the defendant State permits for various billboard sites and assumed continuing jurisdiction over certain administrative proceedings in which the defendant had appealed the denial of billboard permits. The State now appeals. We find that, by statute, the trial court in Davidson County has exclusive subject matter jurisdiction over the matters asserted by the defendant in response to the petition for injunctive relief and in his counterclaims. Therefore, we reverse the decision of the trial court based on lack of subject matter jurisdiction, dismiss the counterclaim in its entirety, and remand. |
Shelby | Court of Appeals |
