Joseph Barna v. Preston Law Group, P.C., et al
The plaintiff appeals the summary dismissal of his legal malpractice action against his former attorney. In the Complaint, the plaintiff alleges that the defendants, the attorney and his law firm, represented themselves to be “competent in securities law related matters,” and that the defendants breached their duty by failing to utilize the requisite skill and competency while representing him in a claim against a brokerage firm in arbitration before a panel of the National Association of Securities Dealers. The defendants moved for summary judgment, which was supported by the affidavit of the attorney who represented the plaintiff in arbitration. The trial court granted the motion, finding that the plaintiff had failed to present evidence sufficient to create a genuine issue of material fact regarding damages and causation. We have determined that the defendants’ motion and supporting affidavit failed to either affirmatively negate an essential element of the plaintiff’s claim or establish that the plaintiff cannot prove an essential element of his claim at trial. Having failed to shift the burden of production to the plaintiff, the defendants’ motion for summary judgment should have been denied without consideration of the sufficiency of the affidavits of the plaintiff’s expert witnesses. Accordingly, we reverse the grant of summary judgment. |
Davidson | Court of Appeals | |
Vintage Health Resources, Inc. v. James Jose R. Guiangan
This appeal involves a breach of an employment agreement. The plaintiff company recruits health care workers from the Philippines to come to the United States to work for its clients. The company recruited the defendant nurse by using written recruitment materials. The nurse signed an employment agreement that differed from the recruitment materials in that one of the benefits listed as “free” in the recruitment materials was not free. Approximately one year into the nurse’s threeyear term of employment, the nurse resigned. When notified of the nurse’s intent to resign, the company’s management threatened to report the nurse to immigration officials. Despite the threats, the nurse left the employ of the company. The company then filed the instant lawsuit against the nurse, asserting breach of contract. In his answer, the nurse asserted, inter alia, that the employment agreement violated public policy and was unenforceable because the company’s threats constituted involuntary servitude. Although unconscionability was not pled, the nurse was permitted to assert the defense at trial. The trial was bifurcated, with the issue of damages reserved. After the trial, the trial court held that the company’s threats constituted involuntary servitude, and that the employment agreement was unenforceable because it was unconscionable and contrary to public policy. The trial court also, sua sponte, enjoined the company in the future from using recruitment materials that differed from the employment agreements and from threatening to report employees to immigration officials. The company appeals. We reverse the holding that the employment agreement is unenforceable because unconscionability was never pled, the employment agreement is not unconscionable, and the agreement is not contrary to public policy. We vacate the injunctive relief as to the recruitment materials and affirm as to the remaining injunctive relief. The cause is remanded for consideration of the plaintiff company’s damage claim and the defendant nurse’s counterclaims. |
Shelby | Court of Appeals | |
Featherfoot Point Property Owners Association, Inc. v. Jim Zweig
This appeal arises from Appellant’s action to enforce a restrictive covenant in a residential subdivision. The matter was heard by the trial court in a non-jury trial on August 12, 2008. Before Appellant completed its presentation of evidence, the trial court sua sponte ended the proceeding and entered an order of involuntary dismissal. Finding that the trial court erred in dismissing the case before Appellant completed its presentation of evidence, we reverse. |
Decatur | Court of Appeals | |
Deborrah Brownlee v. Gastrointestinal Specialist, P.C.
Plaintiff filed this action against defendant after she slipped and fell in defendant’s bathroom. Defendant filed a motion for summary judgment asserting that plaintiff could not establish the elements of her claim. The trial court found that plaintiff could not establish the elements of a premises liability claim and granted summary judgment in favor of defendant. Finding that defendant did not meet its burden at the summary judgment stage, we reverse. |
Shelby | Court of Appeals | |
The City of Jackson, Tennessee v. David Hersh and PSET, L.P.
This appeal addresses whether a judgment is final and appealable. The plaintiff municipality sued the defendant owner of the city’s minor league baseball team for breach of contract. The city also sought prejudgment interest and attorney’s fees. A consent order was entered allowing the defendants to complete a planned sale of the team to a third party; the third party was to forward the sales proceeds to the court clerk to be held in escrow. The defendants then filed a counterclaim against the city, sounding in both contract and tort, as well as third-party claims against the mayor and a city employee. The contract issues were tried, and the trial court held that the city was entitled to damages and dismissed the defendants’ contract counterclaim against the city. The trial court did not address the city’s request for prejudgment interest and attorney’s fees. The defendants nonsuited their remaining claims and an order was entered dismissing the claims on June 11, 2007. The city filed a motion to assess attorney’s fees and prejudgement interest, and the defendants filed a motion to release the funds held in escrow. On September 15, 2008, the trial court denied the city’s motion for prejudgment interest and attorney’s fees, finding that the June 11, 2007 order was a final judgment because the request for prejudgment interest and attorney’s fees was not a claim but was instead an amount of the city’s recovery of damages. The trial court found that it did not have jurisdiction to consider the city’s request for prejudgment interest or attorney’s fees because the city failed to file a timely motion to alter or amend the judgment. The issue of the funds held in escrow was not addressed by the trial court. The city now appeals the September 15, 2008 order, arguing that the June 11, 2007 order was not final. We find that the trial court erred in holding that the June 11, 2007 order was a final judgment, and conclude that this Court does not have jurisdiction to hear this appeal. Therefore, we dismiss the appeal and remand the case to the trial court. |
Madison | Court of Appeals | |
Remote Woodyards, LLC. v. The Estate of Romie Neisler, et al.
This case arises from a dispute over a timber contract. Appellees, through their attorney-in-fact, executed a timber deed in favor of John Jones, which deed was recorded. Mr. Jones then assigned the deed to the Appellant herein, and this assignment was not recorded. When the Appellees discovered that Mr. Jones’ checks were insufficient, they re-sold the timber to the third-party defendant. 1 The third party paid value for the timber, and proceeded to cut and remove it. Appellant then filed suit against the Appellees and the third party defendant. The trial court found that Appellant was a bona fide purchaser for value, but declined to award double or treble damages pursuant to Tenn. Code Ann. § 43-28-312. The trial court also relieved the Appellees’ attorney-infact from liability, and determined that the third party defendant was also a bona fide purchaser and, therefore, not liable. Appellant appeals. We affirm. |
Henderson | Court of Appeals | |
Elishea D. Fisher v. Christina M. Johnson
This is a personal injury suit arising out of an automobile accident. Plaintiff appeals the trial court’s dismissal of her punitive damages claim, as well as its exclusion of evidence regarding Defendant’s underage consumption of alcohol prior to the accident and leaving the scene of the accident. Because Plaintiff has failed to show a genuine issue of material fact exists regarding Defendant’s intoxication, we affirm the trial court’s dismissal of Plaintiff’s punitive damages claim. Because liability has been stipulated in this matter, and the punitive damages claim properly dismissed, we find Defendant’s underage consumption of alcohol and leaving the scene of the accident irrelevant. Thus, we affirm the exclusion of such evidence. |
Weakley | Court of Appeals | |
Fred Eugene Brooks, Sr. v. Mary Elizabeth Haimes Brooks
This case involves issues arising out of the parties’ divorce. Prior to the parties’ marriage, both Husband and Wife owned separate residences. In its property division, the trial court found that during the parties’ marriage, Husband’s home increased in value by $61,700.00, and the court awarded each party one-half of the appreciation, or $30,850.00. The trial court found Wife’s home to be her sole and separate property, as the value of her home decreased during the marriage. Finally, the trial court awarded Wife $3,000.00 in attorney fees to be paid by Husband. On appeal, Husband contends that Wife was entitled only to $9,000.00 of the increased value of Husband’s home–onehalf of the value of an addition made to the home during the marriage. Husband further claims that the trial court erred in failing to offset Wife’s award for debts paid on her home during the marriage, and in its award of attorney fees. We reverse the trial court’s award to Wife, and we affirm both the trial court’s award of attorney fees to Wife, and its finding that Wife’s home did not increase in value during the parties’ marriage such that Husband could recover a share of such increase. |
Tipton | Court of Appeals | |
Edna N. Zulueta v. Winifred Lassiter, M.D., of The Lassiter Clinic, et al.
The trial court awarded summary judgment to Defendant physician in this medical malpractice action. We dismiss the appeal for failure to appeal a final judgment. |
Davidson | Court of Appeals | |
Emily Christine Wimley v. Emily Annette Wimley and Jerry Lee Wilmley and The First National Bank of Manchester Tennessee
This case involves the validity of transfers of property and money from a mother to her daughter and son-in-law. The trial court determined that there was a confidential relationship between the mother and her daughter and that the defendants failed to overcome the presumption of undue influence. We affirm the trial court in all respects. |
Coffee | Court of Appeals | |
Jerome Williams v. George Little, et al.
Petitioner sought to withdraw a waiver he had signed as a prisoner. On a summary judgment motion by defendants, the Trial Court held that if the waiver was withdrawn, petitioner would serve more time and granted the motion. On appeal, we affirm the grant of summary judgment. |
Davidson | Court of Appeals | |
Jamie McAfee v. Ruby Lambert, et al.
Defendant landowners appeal the trial court’s judgment finding that they had dedicated a roadway to public use by implication, and ordering the parties to widen the roadway and move utility lines. We dismiss for lack of a final judgment. |
McNairy | Court of Appeals | |
Thomas & Associates, Inc. v. Tennessee American Contractors, Inc.
The issue on appeal is whether the trial court erred in imposing Tenn. R. Civ. P. 11 sanctions against the defendant and its attorneys for failing to dismiss the counterclaim filed against the plaintiff. Prior to the trial of the case, the plaintiff filed a Rule 11 motion for sanctions contending the filing of defendant’s counterclaim violated Rule 11. Thereafter, the case went to trial on the plaintiff’s complaint and defendant’s counterclaim. At the close of the proof, the defendant voluntarily dismissed its counterclaims. After the trial was concluded, the trial court held that the defendant and its attorneys violated Rule 11 because the evidence presented at trial revealed that the counterclaim had no basis in fact or law and they failed to dismiss the counterclaim when the motion for sanctions was filed. We have determined the trial court applied an incorrect legal standard by evaluating the issue with the wisdom of hindsight instead of examining the circumstances existing at the time the counterclaim was signed by the attorneys, and for imposing sanctions for failing to voluntarily dismiss the counterclaim, because Rule 11 does not impose a duty to review or reevaluate a pleading once filed or to take affirmative steps thereafter to dismiss a previously filed pleading. Therefore, we reverse the imposition of Rule 11 sanctions. |
Davidson | Court of Appeals | |
Barry Armistead v. Tennessee Department of Corrections, et al
Inmate filed a petition for certiorari, seeking a review of a decision of the prison disciplinary review board, affirmed by the Commissioner of Corrections, finding him in violation of Tennessee Department of Corrections policy. The trial court dismissed the petition for lack of jurisdiction, finding it was not filed within sixty days of the entry of the order for which review was sought. Finding no error, we affirm the action of the trial court. |
Davidson | Court of Appeals | |
In Re: R.H. and J.H.
Parents of two children appeal the termination of their parental rights, asserting that the grounds for termination do not exist under the facts presented. We affirm the judgment of the trial court. |
Putnam | Court of Appeals | |
Bernard Hughes vs. Demar Hudgins - Dissenting
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Hamilton | Court of Appeals | |
Bernard Hughes vs. Demar Hudgins
The plaintiff claimed that he suffered neck and back injuries after the automobile in which he was riding was rear-ended by the defendant’s automobile. The defendant admitted breach of the standard of care, but the jury found that the plaintiff had suffered no damages as the result of the accident, and he was not awarded any recovery. The trial court awarded the defendant $645.95 in discretionary costs to cover the court reporter fees he incurred for depositions. The plaintiff argues on appeal that there was no material evidence to support the jury’s verdict. For his part, the defendant argues that the trial court erred in declining to award him all of the discretionary costs he requested. We affirm the jury verdict, but we remand the issue of the award of discretionary costs. |
Hamilton | Court of Appeals | |
Gary Curtis Whitworth v. Patricia Gayle Whitworth
In this divorce action, the defendant, following the entry of the Divorce Decree, filed a Motion to Set Aside the Marital Property Settlement on the grounds that she did not agree to the same, and further was denied due process because she had no notice of a hearing resulting in the Divorce Decree. On appeal, we vacate and remand. |
Loudon | Court of Appeals | |
In Re: J.G.H.,Jr., dob 11/04/05, A Child Under 18 Years of Age James And Teri Wolfe v. Jennifer Lynn Duckhorn - Dissenting
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Shelby | Court of Appeals | |
In Re: J.G.H.,Jr., dob 11/04/05, A Child Under 18 Years of Age James And Teri Wolfe v. Jennifer Lynn Duckhorn
This appeal involves the termination of a mother’s parental rights to her son based on the ground of abandonment by willful failure to visit. Mother appeals, claiming that the trial court should have dismissed the termination petition because the petitioners lacked standing, or alternatively, because the petition failed to contain a notice provision required by Tennessee Rule of Civil Procedure 9A. Mother also claims that the trial court looked to the wrong four-month period when determining whether she failed to visit and erred in finding that her failure to visit was willful. She also claims that termination was not in her son’s best interest. Finally, Mother claims that her due process rights were violated in various ways. We affirm. |
Shelby | Court of Appeals | |
Donna Faye Shipley, et al. v. Robin Williams, M.D.
In reliance on plaintiff’s experts, the trial court granted defendant doctor’s motion for partial summary judgment on the medical malpractice claim pertaining to defendant’s failure to admit plaintiff into the hospital. The trial court later granted the defendant doctor summary judgment on the remaining malpractice claims finding that the plaintiff’s medical expert proof previously relied upon by defendant failed to comply with Tenn. Code Ann. § 29-26-115. We reverse the grant of partial summary judgment on the failure to admit claim since the defendant doctor relied solely on plaintiff’s experts, whose testimony was later found inadmissable. We also reverse the summary judgment of the remaining malpractice claims since the defendant doctor never presented proof to negate an element of those claims. Consequently, the plaintiff had no duty to create issues of fact at the summary judgment phase. |
Davidson | Court of Appeals | |
Entertainer 118 and Meroney Entertainment, Inc. dba Ken's Gold Club v. Metropolitan Sexually Oriented Business Licensing Board
An inspector cited an entertainer and the sexually oriented business in which she worked for violating an ordinance governing certain requirements for entertainers and businesses engaging in sexually oriented entertainment. The Metropolitan Sexually Oriented Business Licensing Board upheld the citations and fined the entertainer and the business $500 each. They appealed and the chancery court affirmed. They now appeal to the Court of Appeals. We find that the board did not have authority to assess the fine. We affirm the board and the chancery court’s finding that the ordinance was violated, and since the board has authority to impose other sanctions, we remand the matter to the chancery court with instructions to return the matter to the board. |
Davidson | Court of Appeals | |
Anne S. Wilson v. Scott Bowman
I write separately to state that I believe the issue is controlled by Tenn. R. Civ. P. 24, particularly subsections (c), (e) and (f), wherein the respective rights and responsibilities of the appellant, the appellee and the trial court are stated. |
Davidson | Court of Appeals | |
Anne S. Wilson vs Scott Bowman
This application for a Tenn. R. App. P. 10 extraordinary appeal concerns how an appealing party may use a trial court’s recording of a hearing. We grant the appellant’s Rule 10 application.1 Furthermore, we reverse the chancellor’s June 5, 2009 order and remand the matter for the chancellor to rule on appellee’s objections and resolve the parties’ differences as to the content of the transcript or statement of the evidence. |
Davidson | Court of Appeals | |
Wendell P. Baugh, III v. Herman Novak - Dissenting
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Williamson | Court of Appeals |
