Diana S. Lowry v. Tennessee Department of Children's Services
This appeal involves the lower court’s dismissal of a case with prejudice for failure to prosecute. The Department of Children’s Services fired the petitioner, and she requested an administrative hearing. The Administrative Law Judge upheld the termination, and the petitioner appealed to the chancery court in Shelby County. Pursuant to statute, the case was transferred to Davidson County. After one year, the chancellor entered an order that the petitioner schedule the case for a final hearing. The parties set a hearing date, but in violation of local rules the petitioner failed to submit a trial brief. The petitioner’s counsel twice requested a continuance, which was denied each time. The petitioner’s counsel withdrew, and the petitioner decided to proceed pro se. The petitioner was not on time for the hearing at 9:00 a.m. on October 5, 2006. She called the court, notifying all parties that she would be twenty minutes late. The judge waited until 9:40 and called the case, but the petitioner was not present. The judge then sua sponte dismissed the case with prejudice for failure to prosecute. The petitioner submitted a hand-written letter to the court with an explanation for her tardiness. The court treated the letter as a motion to alter or amend, and denied the motion. The petitioner appeals. We reverse and remand. |
Davidson | Court of Appeals | |
Derek Davis v. Mark Luttrell, et al.
The Shelby County Sheriff’s Department terminated the employment of deputy Derek Davis based on a random drug screening. The Civil Service Merit Board affirmed the Department’s decision. Mr. Davis appealed to the Chancery Court for Shelby County, which affirmed. Mr. Davis filed a timely notice of appeal to this Court, asserting the Board’s decision is not supported by substantial material evidence. We reverse. |
Shelby | Court of Appeals | |
Robert Jenkins et al. v. Chase Brown et al.
This appeal involves a dispute regarding the liability for the structural defects in a four-year-old house in a Mt. Juliet subdivision. Shortly after purchasing the house from its original owners, the property owners discovered that the house had been constructed on improperly compacted fill and other debris. When additional structural problems manifested themselves, the property owners filed suit in the Chancery Court for Wilson County seeking compensatory and punitive damages against the contractor who built the house and his wife, the original owners, the original owners’ real estate agent and broker, their own real estate agent and broker, and their home inspector. Following an eight-day trial, the jury determined that the contractor and the original owners had engaged in intentional and reckless misrepresentation by concealing the house’s structural problems. The jury also determined that both real estate agents and the developer of the subdivision were at fault. The jury awarded the property owners $58,720.80 in compensatory damages to be apportioned among the parties at fault. The jury also awarded the property owners $20,000 in punitive damages against one of the original owners and $50,000 in punitive damages against the contractor. The trial court reduced the punitive damage award against the original property owner to $14,000, and granted a judgment notwithstanding the verdict for the two real estate agents with regard to the property owners’ Tennessee Consumer Protection Act claims. On this appeal, the property owners take issue with the dismissal of their claims against the real estate agents and their brokers based on their use of an outdated and incomplete real property disclosure form. The contractor also takes issue with the judgments awarded against him for compensatory and punitive damages. We have determined that the trial court did not err by dismissing the property owners’ claims against the real estate agents and their brokers based on the use of the incomplete and outdated disclosure form. We have also concluded that the property owners presented insufficient evidence to establish their common-law fraud claim against the contractor who built the house. Accordingly, we reverse the portion of the judgment requiring the contractor to pay compensatory and punitive damages. |
Wilson | Court of Appeals | |
In Re: A. R. and J. R.
Both parents appeal the termination of their parental rights on the ground of substantial noncompliance with the permanency plan and failure to remedy persistent conditions. The dispositive issue is whether the Department failed to make reasonable efforts to reunite the family. The reasonableness of the Department’s efforts to reunite a family is dependent upon whether the services rendered were adequate to meet the needs of the family. In this case, the Department knew both parents needed significant psychological services to afford them the reasonable opportunity to meet the goals of the permanency plans and to remedy persistent conditions. The Department knew this because the psychologist who performed the mental health assessment of each parent at the direction of the Department issued a report recommending that both parents receive specific and significant mental health counseling. The record fails to establish that the Department provided the essential psychological services, without which the other services provided by the Department could not meet the needs of either parent or the family. Accordingly, we vacate the order terminating the mother’s and father’s parental rights and remand for further proceedings. |
Davidson | Court of Appeals | |
Kevin Fowler D/B/A Med-State EMS v. Warren County
A private ambulance service provider challenged the fees established in the Warren County ambulance regulations created pursuant to state law. The trial court found the fees were constitutionally permissible. We affirm, finding that the fees were true fees, not taxes, and that the fees were reasonable. |
Warren | Court of Appeals | |
Helen M. Borner, et al. v. Danny R. Autry
This is a Tenn. R. App. P. 9 interlocutory appeal from the Order of the trial court striking medical bills attached to Plaintiffs/Appellants’ complaint pursuant to T.C.A. § 24-5-113. The trial court specifically held that, because Plaintiffs/Appellants incurred total medical expenses in excess |
Madison | Court of Appeals | |
Helem M. Borner, et al. v. Danny R. Autry - Concurring
I concur fully with the result reached by the majority in this case. Respectfully, I file this separate concurrence in order to state my disagreement with dicta in the majority opinion. |
Madison | Court of Appeals | |
Jerry Bundy v. First Tennessee Bank National Association D/B/A First Tennessee Equity Lending
This is an age and sex discrimination case. The fifty-nine-year old male plaintiff worked for the defendant bank as a loan officer. In April 2003, he attempted to process a loan for a customer and did not disclose to the bank underwriting department documents he had received from the customer. When this was discovered, the plaintiff was placed under investigation. His employment was ultimately terminated for violating bank policy. The plaintiff filed this lawsuit, alleging age and sex discrimination. The bank filed a motion for summary judgment, arguing that the plaintiff could not establish a prima facie case of discrimination, or that the bank’s legitimate non-discriminatory reason for terminating him was pretextual. The trial court granted summary judgment in favor of the bank. The plaintiff now appeals. We affirm, concluding that the plaintiff submitted insufficient evidence to establish the fourth element of his prima facie case, that he was either replaced by an employee outside the protected class, or that he was treated less favorably than a similarly situated employee outside the protected class. |
Shelby | Court of Appeals | |
Jonathan Ford, et al. v. Steve Corbin, et al.
This interlocutory appeal concerns the liability of a municipality. Pursuant to the municipality’s ordinances, a municipal inspector inspected a church building. The inspector sent a letter to the owners of the building notifying them that, due to the dilapidated condition of the building, they were in violation of a city ordinance. Over a year later, the building collapsed, killing four people, including three children, and injuring a fifth. The plaintiffs filed suit against the municipality for negligence based on the initial inspection and the municipality’s failure to take appropriate action after the initial inspection. Three separate lawsuits were consolidated into this action. The municipality filed a motion for summary judgment, arguing that it was immune from liability. The motion was denied. The municipality was then granted permission for this interlocutory appeal. On appeal, we affirm in part and reverse in part the trial court’s denial of summary judgment, holding that the defendant municipality may not be immune from liability for some claims under the facts presented in this case. |
Shelby | Court of Appeals | |
State Farm Fire & Casualty Company v. Darrell Sparks, et al.
This appeal arises out of an action for declaratory judgment brought by an insurer. The insurer asked the court to determine whether its homeowners’ and personal liability umbrella policies afforded coverage and required defense of a tort action filed against its insured. The tort action involved an accident that occurred at the site of an oil well, which was owned and operated by a partnership in which the insured parties were partners. The insureds’ insurance policies excluded coverage for losses arising out of their “business pursuits.” The trial court granted partial summary judgment to the insureds and ordered the insurer to defend and indemnify the insureds in the underlying tort action. For the following reasons, we reverse. |
Shelby | Court of Appeals | |
State of Tennessee v. Billy L. Couch, M.D. A/K/A Dr. B. L. Couch, et al.
Defendant doctor appeals an award of summary judgment to the State in this action brought pursuant to the Tennessee Consumer Protection Act (TCPA) in connection with the sale and administration of flu vaccine. The trial court found the defendant doctor guilty of two hundred seventy (270) violations of the TCPA for vaccinating fifty-four (54) patients with serum manufactured for the previous flu season while representing it would protect them in the upcoming flu season; awarded restitution to the patients, imposed a civil penalty of $50 per violation, and awarded $10,500 in attorney’s fees and costs for investigation; and issued permanent injunction prohibiting doctor from selling or administering a flu vaccine manufactured for a previous flu season. On appeal, defendant doctor contends he established that two material facts were in dispute. We affirm. |
Gibson | Court of Appeals | |
Ricky Holloway et al. v. Cyril Evers, et al.
A contractor who was a partner in a subdivision development venture sold his interest to the other partners for $175,000. He subsequently filed a complaint against them alleging that they had deliberately taken advantage of his weak financial and physical condition to force him out the partnership. His complaint included claims for violation of fiduciary duty, duress and fraud. The trial court dismissed the contractor’s claim on summary judgment. We affirm. |
Maury | Court of Appeals | |
Charles Raines, as Administrator of the Estate of Zelma Raines, deceased, v. National Health Corporation
This case was filed as a nursing home neglect case. The issue before the Court relates to the enforceability of an arbitration agreement signed during the nursing home admissions process by the holder of a durable power of attorney. The trial court denied the appellants’ motion to compel arbitration. It held that the arbitration agreement was beyond the authority of the attorney-in-fact, and, therefore, it did not reach questions related to the capacity of the decedent to execute the durable power of attorney; nor did it address the unconscionability of the agreement. We reverse the trial court as to its ruling on the authority of the attorney-in-fact and remand for a hearing and decision on the other issues not previously reached below. |
Rutherford | Court of Appeals | |
Ross Products Division Abbott Laboratories, v. State of Tennessee
A manufacturer of infant formula entered into a contract with the State of Tennessee to furnish large quantities of its products to retailers for the federally-funded WIC program. The contract included a cash rebate which the manufacturer agreed to pay the State for each can furnished, to offset the cost of administering the program. After operating under the contract for four years, the manufacturer unilaterally decided to reduce the size of the cans it was providing, and it asked the state to reduce the rebate proportionally. The State refused, citing a provision in the contract that precluded rebate reductions. The manufacturer then filed an administrative claim, asking for a $1.2 million refund of its alleged overpayment of rebates. The Claims Commissioner granted Summary Judgment to the State. We affirm the Commissioner’s judgment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Tennessee Claims Commission Affirmed |
Davidson | Court of Appeals | |
Patricia “Kay” Provonsha, v. Students Taking a Right Stand, Inc. (STARS)
The gravamen of this action is an alleged retaliatory discharge. Plaintiff charged defendant with a common law violation, as well as a violation of the Tennessee Public Protection Act. Defendant moved for summary judgment which the Trial Court granted. On appeal, we affirm. |
Hamilton | Court of Appeals | |
Harold Dennis Hardaway & Sonya Hardaway v. Hamilton County, Tennessee Board of Education, et al
In this action for damages allegedly due to water runoff from construction for a new school, the Trial Court granted defendants summary judgment. On appeal, we conclude there are disputed issues of material fact, and remand and vacate the summary judgment. |
Hamilton | Court of Appeals | |
State of Tennessee, Department of Children's Services v. C.W. and J.C.W., In the Matter ofL C.W.(DOB 04/21/99) and J.W. (DOB 02/22/02)
The Trial Court terminated the parental rights of the parents of the two minor children. On appeal, we affirm. |
Campbell | Court of Appeals | |
Heather Hill, et al. v. Andrea Giddens, M.D., et al.
Patient filed a complaint against Doctors, OB/GYN Group, and Hospital (together “Defendants”) alleging medical malpractice for failing to obtain informed consent and failing to properly care for Patient during and after her hospitalization. The trial court granted summary judgment in favor of the defendants on the grounds that Patient failed to provide a competent medical expert as required by T.C.A. § 29-25-115 (Supp. 2006). Patient appeals. |
Shelby | Court of Appeals | |
Bessie L. White, et al. v. Premier Medical Group, et al.
In this medical malpractice action against a treating physician, his medical group, and several hospital entities, the plaintiffs contend the trial court erred by including in the jury instructions the defense of superseding cause requested by the treating physician and his medical group. The plaintiffs argue the evidence was insufficient to justify the instruction. It is proper to charge the law upon an issue of fact within the scope of the pleadings upon which there is material evidence sufficient to sustain a verdict. The record contains material evidence regarding each of the essentialelements of the defense of superseding cause sufficient to sustain a verdict of superseding cause; therefore, an instruction as to superseding cause was appropriate. |
Montgomery | Court of Appeals | |
Harry McLemore, Jr. v. Charles Traughber, Tennessee Boards of Probation and Paroles
An inmate filed a petition for a common law writ of certiorari, alleging that the Board of Paroles acted arbitrarily and illegally in denying parole. The chancery court dismissed the petition for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. The inmate appealed. We affirm. |
Davidson | Court of Appeals | |
Bruce Wood, et al. v. Metropolitan Nashville Board of Health, et al.
This is an appeal challenging the issuance of several permits to North American Galvanizing Company by the Air Pollution Division of the Metropolitan Department of Health. Appellants base their challenge on the failure of the Department to consider the location of the company as well as noise and exhaust fumes arising from truck traffic traveling through a residential neighborhood to and from the company. They also challenge the representation of both the Department and the Boardof Health by Metropolitan Department of Law attorneys. The Chancellor ruled against the appellants. We affirm. |
Davidson | Court of Appeals | |
Linda L. Weber, v. Donald D. Weber, Jr.
In this dispute over child support owing by the father, the Trial Court ordered child support ended on the grounds the child turned 18 and his high school class had graduated, but ordered payments of back child support arrearage. On appeal, we affirm. |
Williamson | Court of Appeals | |
Moore Family Properties, LLC, et al. v. Pull-A-Part of Tennessee, LLC, et al.
This appeal involves a review of actions taken at a meeting of the Memphis City Council. When the council members voted on a resolution, for unknown reasons, the electronic voting machine did not record an entry for one of the council members. This resulted in six votes being cast in favor of the measure and six votes against it. The omitted council member orally expressed his intention to vote in favor of the resolution before the Chairman announced the result of the vote. The Chairman then called for the electronic voting machine to be cleared so that all members could re-enter their votes. After the second vote, the Chairman declared that the resolution passed by a vote of seven to six. The appellants filed a petition for a writ of certiorari in the chancery court, alleging that the first vote was final and that the City Council acted illegally by taking a second vote. Upon review of the record of the proceedings, the trial court granted summary judgment to the City of Memphis and the Memphis City Council. We affirm. |
Shelby | Court of Appeals | |
William Edward Hargrove v. Merriellen Hargrove A/K/A Merriellen Warstler
This is a post-divorce case involving disputes over obligations in the Marital Dissolution Agreement and modification of the visitation schedule contained in the permanent parenting plan. Husband filed for divorce from Wife, and on August 25, 1998, the chancery court entered a final decree of divorce that incorporated the Marital Dissolution Agreement. The permanent parenting plan was filed on February 12, 2004. Concerning Husband and Wife’s minor son, born January 7, 1990, the residential schedule in the permanent parenting plan provided that Husband would be the primary residential parent and Wife would be responsible for the child every other weekend and during certain holidays. As to property division, the Marital Dissolution Agreement required Husband to transfer one-half of his pension plan to Wife. Concerning the marital home, Wife agreed to execute a quitclaim deed to Husband conveying her interest to Husband simultaneously with Husband paying her $15,000. After a contempt hearing, the court modified the parenting schedule; found that Wife was entitled to one-half of Husband’s pension, but not one-half of Husband’s annuity; and found that Husband had satisfied the $15,000 obligation. Wife appeals pro se, arguing that the modification of the residential schedule found in the parenting plan is void because the court did not follow Tenn. Code Ann. § 36-6-405(a). Wife also argues that the parties’ intent was that she was to receive half the annuity along with half the pension. Finally, Wife contends that Husband did not meet his burden of proof to establish the defense of accord and satisfaction. We affirm. |
Benton | Court of Appeals | |
In Re: Adoption of M.P.J., DOB 1/29/02
This is a case involving the termination of a father’s parental rights. The Department of Children’s Services instituted a dependent and neglect proceeding and the court granted a protective order removing the minor child from the mother’s home. At the time, the father’s whereabouts were unknown. The child, almost seven months old, was placed in the temporary custody of her greataunt. The father subsequently began serving a 56 month sentence in federal prison. When the child was almost five years old, the great-aunt petitioned the court for the termination of both the mother and the father’s parental rights and for the adoption of the child. The mother joined in the petition. After a termination hearing, the court announced that the father had abandoned the child, that his rights were terminated, and granted the great-aunt’s petition for adoption. The court first entered an order of adoption, but had yet to enter the order terminating the father’s parental rights. The court then issued an order of termination, but failed to include any findings of fact. Next, the court issued an amended order of termination with specific findings of fact, nunc pro tunc to the termination hearing date. Father appeals, arguing (1) that the trial court failed to make findings of fact; (2) that there is not clear and convincing proof of abandonment; (3) that the Department of Children’s Services did not afford him a reasonable opportunity to reunite with the child; and (4) that substantial harm to the child must be proven before a court may constitutionally terminate a parent’s rights. We affirm. |
Gibson | Court of Appeals |
