Cortney Davis v. State of Tennessee
The Petitioner filed a Petition styled “Petition for Writ of Habeas Corpus” which the trial court treated as a petition for writ of certiorari. We affirm the order of the trial court dismissing the petition, but on the basis that the petition was not supported by oath or affirmation nor does it state that it is the first application for a writ. |
Lauderdale | Court of Appeals | |
Kevin Seramur vs. Life Care Centers of America, Inc.
Plaintiff, a former employee of defendant, brought this action to enforce an employment contract for benefits allegedly due under the contract. The Trial Court granted defendant summary judgment on the grounds that a provision in the employment contract to which the parties originally agreed to, was an unenforceable contract, as the provision amounted to an agreement to agree and dismissed the action. On appeal, we affirm. |
Bradley | Court of Appeals | |
Gerry Gallimore, et al. v. Reba Gallimore
This case involves a dispute between a decedent’s ex-wife and the decedent’s heirs. When the decedent and the ex-wife divorced, their marital dissolution agreement provided that the decedent would receive certain real property. When the decedent died four years later, the ex-wife had not executed a quitclaim deed conveying her interest in the property to the decedent. Therefore, the heirs filed this action to quiet title. The ex-wife claimed that the decedent wanted her to retain her interest in the property, and she claimed that the heirs were barred from seeking relief under the doctrines of laches and waiver. The trial court found in favor of the heirs, and the ex-wife appeals. We affirm. |
Weakley | Court of Appeals | |
Mendy Joan Hagler v. Joel Scott Hagler
In this divorce case the Trial Judge granted the parties a divorce and divided the marital estate. The husband appealed on the grounds that a house awarded to the wife was not a marital asset, and otherwise questioned the property and division of the indebtedness of the marital estate. On appeal we affirm, as modified, the modification being that the evidence preponderates against the Trial Judge finding that the father had awarded his son a collection of firearms. |
Bradley | Court of Appeals | |
Sameh Akladyous, et al. v. GTech Corporation, et al.
This is an appeal from the granting of a summary judgment to Gtech Corporation and Specialized Communications Companies, Inc., relating to the installation of a satellite antenna on the roof of A&S Market located in Davidson County, Tennessee. The market burned and the owners brought suit alleging that the negligent installation of the satellite antenna caused the fire. The trial court granted summary judgment on the ground the negligence alleged by the market owners was not the legal cause of the fire. We reverse. |
Davidson | Court of Appeals | |
In Re: D.C.A.
The trial court terminated the parental rights of the father of an eleven year old boy on the ground of abandonment by willful failure to pay child support. The father admitted that he did not pay the child support ordered by the court, but claimed that his failure was not willful. He argued that his record as a convicted felon prevented him from finding and holding steady employment, thus rendering him unable to pay any support at all. However, the record shows that Father was able-bodied and did in fact work at a number of jobs after his felony conviction. We accordingly affirm the trial court. |
Hickman | Court of Appeals | |
Edwina Montgomery ex rel. Thomas M. Montgomery v. Kali Orexi, LLC, et al.
In this wrongful death action, Edwina Montgomery (“the Plaintiff”), individually and as the surviving spouse of Thomas M. Montgomery (“the Deceased”), brought suit under the Tennessee Dram Shop Act (“the Dram Shop Act” or “the Act”), Tenn. Code Ann. §§ 57-10-101 and 102 (2002). The Plaintiff also sued for negligence and negligence per se.1 The Plaintiff sued Kali Orexi, LLC, which operates under the trade name of Gondolier Italian Restaurant and Pizza (“Gondolier”). Gondolier moved for summary judgment, which was granted as to all theories of recovery. We affirm the summary judgment on what appears to be an issue of first impression. We hold that Tenn. Code Ann. §§ 57-10-101 and 102 (2002) apply to third parties and do not authorize an action against a seller of an “alcoholic beverage or beer” by or on behalf of the supplied, or “first” party. Since the Dram Shop Act does not address first parties, its enactment leaves the law as to first parties as it existed before the Act’s enactment. In addition, under the circumstances of this case, the trial court correctly held that the injuries to the Deceased were not foreseeable; thus, Gondolier owed the Deceased no duty. Furthermore, even if a duty were owed, it was not breached. The question whether the actions of the Deceased and a taxi driver, who was paid by Gondolier to take the intoxicated Deceased home, were intervening and superseding causes that relieve Gondolier of liability are not addressed since we hold that the Plaintiff had no cause of action under the Dram Shop Act or for common law negligence. Accordingly, we affirm.2 |
Sevier | Court of Appeals | |
Allison Lynn Simmons v. Richard Lee Simmons
Husband appeals two convictions of contempt of court and sentence of two days incarceration for each finding of contempt. Finding no error on the part of the trial court, we affirm the convictions. |
Robertson | Court of Appeals | |
In Re S.R.M.
This appeal involves a petition filed by the State of Tennessee, Department of Children’s Services, to terminate the parental rights of a biological father to his now ten-year-old daughter. The Juvenile Court granted the petition and the father has appealed. After carefully reviewing the record and relevant legal authority, we affirm the Juvenile Court’s finding of abandonment and the judgment terminating the father’s parental rights. |
Blount | Court of Appeals | |
Robert Richmond and wife, Darlene Richmond v. HSBC Bank, USA, as trustee
Plaintiffs brought this action to enjoin enforcement of a detainer judgment and to nullify a foreclosure on their home on the basis that defendant failed to offer the property for sale at the courthouse door, in accordance with the notice of foreclosure. The Trial Court held plaintiffs failed to prove their allegations and found the foreclosure sale was properly held. Plaintiffs appealed. We affirm. |
Anderson | Court of Appeals | |
Ron Henry, et al. v. Cherokee Construction & Supply Company, Inc.
Ron Henry and Linda Henry (“Plaintiffs”) sued Cherokee Construction and Supply Company, Inc. (“Defendant”) alleging damages sustained when a wall in the home that Defendant constructed for Plaintiffs collapsed. Defendant filed a motion for summary judgment. The Trial Court entered an order finding and holding that Plaintiffs’ claim was barred by the four year statute of repose contained in Tenn. Code Ann. § 28-3-201, et seq., and granting Defendant summary judgment. Plaintiffs appeal to this Court. We affirm. |
Jefferson | Court of Appeals | |
Billie Gail Hall, as Surviving Spouse of Billy R. Hall v. Douglas B. Haynes, JR., M.D. and Medsouth Healthcare, P.C.
This appeal involves authority to accept service of process. The plaintiffs filed a medical malpractice lawsuit against the defendant corporation and its employee, the defendant physician. The plaintiffs attempted to serve process in person on both the corporation and the physician at the corporation’s business address. Service was accepted on behalf of the physician by a co-worker, who was not specifically authorized to accept service for him. Service was accepted on behalf of the corporation by an employee of the corporation who was not an officer, managing agent, or chief agent, and who was not specifically authorized to accept service for the corporation. Both defendants received a copy of the summons and complaint. The plaintiffs then filed an amended complaint and attempted to serve both defendants via certified mail. The return receipts for both defendants were signed by an employee of the corporation who was not an officer, managing agent, or chief agent of the corporation, and was not specifically authorized to accept service of process on behalf of either the physician or the corporation. The employee who signed the return receipts was, however, authorized to sign for certified mail. The defendants filed a motion for summary judgment based in part on insufficiency of service of process. The trial court denied the motion for summary judgment, relying on this Court’s decision in Boles v. Tennessee Farmers Mutual Insurance Co., No. M1999-00727-COA-R3-CV, 2000 WL 1030837 (Tenn. Ct. App. July 27, 2000). The defendants were granted permission for interlocutory appeal. On appeal, the defendant physician argues that service on him was not effective because he was not personally served and because the persons who accepted service on his behalf were not authorized to do so. The defendant corporation argues that service on it was not effective because neither the corporation’s registered agent nor its administrator were served and the persons who accepted service on the corporation’s behalf were not authorized to do so. After reconsidering the analysis in Boles, we reverse the trial court’s decision, finding that service was not effective on either defendant and the trial court erred in denying the defendants’ motion for summary judgment. |
Dyer | Court of Appeals | |
Tim Burrus v. Jimmy Wiseman
This is a lawsuit filed by eight county officials to resolve a budget dispute. The officials filed an application in Chancery Court seeking judicial authorization to hire additional staff and to increase the salaries and benefits paid to a separate group of county employees. One day after the petition was filed, the officials, along with the defendant County Mayor, entered a consent order approving each petitioner’s requests. One month later, the County Commission attempted to intervene and have the order set aside. The trial court denied the County Commission’s motions, and the County Commission appeals. We affirm the trial court’s denial of the motion to intervene. However, several procedural and substantive defects require this Court to vacate the Consent Order and remand |
Benton | Court of Appeals | |
Paul L. McMillin vs. Cracker Barrel Old Country Store, Inc.
Plaintiff brought an action against defendant in 2005 and another action, similar in nature, against the same defendant in 2006. The actions were assigned to two separate Judges and the 2005 action was first dismissed by one Judge and subsequently the 2006 action was dismissed by the other Circuit Judge. The plaintiff has appealed the 2006 action. We affirm the Judgment of the Trial Court. |
Knox | Court of Appeals | |
Edwin O. Martin, et al v. Carl Nash, et al
Members of family in whose name a cemetery was established brought suit against owners of property surrounding the cemetery seeking removal of a cloud upon their title to the cemetery, injunctive relief and damages. The trial court declared the boundaries of the original cemetery and limited those entitled to be buried therein to the family members; allowed that members of the general public were permitted to be buried in land added to the original cemetery tract; and appointed trustees to manage the cemetery as established under both conveyances. Family members appeal, contending that trial court erred in setting the cemetery boundary; in disregarding proof of cost of repairing fence which had been removed by one defendant; and in refusing to hear testimony as to the trust fund established for the maintenance of the cemetery. Finding no error, we affirm the decision of the trial court in all respects. |
Putnam | Court of Appeals | |
Steven Amodeo, D.C., et alL. v. Conservcare, LLC., et al.
In this appeal, we are asked to determine whether the trial court erred in granting summary judgment in favor of Appellees as to Appellants’ claims of civil conspiracy; violation of the Tennessee Consumer Protection Act, Tenn. Code Ann. § 47-18-104(b)(8), (27); violation of the Health Maintenance Organization Act of 1986, Tenn. Code Ann. § 56-32-229(a); and common law claims of outrageous conduct and tortious interference with another’s business. We are also asked to determine whether the trial court erred in dismissing Appellants’ Tennessee Trade Practices Act claims. We affirm. |
Shelby | Court of Appeals | |
Liberty Mutual Insurance Company v. Friendship Home Health Agency, LLC
In this appeal, we are asked to determine whether the trial court abused its discretion in denying Appellant’s motion for a continuance based on Appellee’s failure to provide certain documents until the day before trial and the absence of a witness for Appellant. We are also asked to determine whether the trial court erred in finding that no accord and satisfaction was made when Appellee cashed a check from Appellant for a lesser amount than was owed to Appellee for increased insurance premiums. Finally, we are asked to determine whether the trial court erred in finding that the statute of frauds was not violated although no writing was made when Appellant’s insurance policy was re-instated. We find that the trial court did not abuse its discretion in denying Appellant’s motion for a continuance, and affirm the trial court’s ruling that no accord and satisfaction was made. Because a statute of frauds defense was not properly raised in the trial court, we deem the issue waived. |
Davidson | Court of Appeals | |
Winston E. Wolfe, Trustee of the Winston E. Wolfe Revocable Living Trust Dated December 5, 1997 v. O. Michael Jaeger, et ux.
This appeal arises from a private condemnation action commenced by Plaintiff pursuant to Tennessee Code Annotated § 54-14-101, et. seq. After the jury of view filed its report, but before the report was acted upon by the trial court, Plaintiff moved for a voluntary nonsuit pursuant to Tennessee Rule of Civil Procedure 41.01. The trial court granted the nonsuit, and Defendants filed a Rule 60.02 motion for relief from the judgment granting the nonsuit. The trial court denied Defendants’ motion. We affirm. |
Fayette | Court of Appeals | |
Theresa S. Biancheri, Trustee of the Mercer Family Trust v. Charles M. Johnson, Jr., et al. AND Charles M. Johnson, Jr. v. Ida Louise Cromwell, et al.
The matters at issue arise from a contract for the sale of a residence and the buyers’ refusal to close on the purchase of the residence. The seller, the trustee of a family trust, and the buyers entered into a contract for sale of a residence. Prior to closing, the buyers discovered that elaborate audio-visual equipment, that was material to them, had been removed by the husband of the Trustee. The buyers considered this a material breach and refused to close; as a result, the seller filed suit against the buyers for breach of contract. The buyers counter-claimed alleging the seller breached the contract first and that the seller, through its real estate agent, had made fraudulent misrepresentations to induce the buyers to sign the contract, specifically that the audio-visual equipment was part of the sale and that the previous resident, who died inside the home after being shot by his wife in the bedroom closet, had not died in the home. The buyers also filed a separate action against the seller’s real estate agent alleging fraudulent misrepresentation, fraud, promissory fraud, fraud in the inducement, negligent misrepresentation, and violations of the Tennessee Consumer Protection Act. The buyers’ claims against the seller were summarily dismissed upon findings by the trial court that the contract was valid and that the buyers breached the contract by failing to close. The real estate agent was summarily dismissed upon a finding that the buyers could not establish actionable misrepresentations. The buyers then filed a motion for summary judgment on the issue of damages for breach of contract, contending the contract afforded the seller the option of electing liquidated damages, in lieu of compensatory damages, in the amount of the earnest money and that the seller had made that election by retaining the earnest money. The trial court summarily ruled that the seller had elected to receive liquidated damages as its exclusive remedy. The buyers appeal the summary dismissal of their claims against the seller and the seller’s real estate agent. The seller appeals the summary ruling that it elected to recover liquidated damages in lieu of compensatory damages. We have determined the real estate agent was not entitled to summary judgment as material facts are in dispute concerning whether the agent made material misrepresentations to induce the buyers to enter into the contract. We have determined the seller was not entitled to summary judgment on the issue of liability for the buyers’ alleged breach of the contract because material facts are in dispute concerning whether the buyers are entitled to rescission of the contract based on the agent’s alleged misrepresentations and whether the seller breached the contract prior to the buyers’ alleged breach by removing components from the integrated television system, which the buyers contend was a material part of the contract. Due to our ruling that the seller was not entitled to summary judgment on the issue of liability, the seller is not entitled to damages for breach of contract, and it is premature to determine which party may be entitled to damages and in what amount. Accordingly, the award of liquidated damages in favor of the seller is reversed. |
Davidson | Court of Appeals | |
Wayne B. Gillard v. James A. Taylor, et al.
Police officer who was injured while driving his patrol car brought this action against his automobile insurer to recover uninsured motorist benefits under his personal policy. The trial court denied insurers’ motion for summary judgment, finding that the regular use exception found in the policy was ambiguous. The insurance company appeals. We reverse and remand. |
Shelby | Court of Appeals | |
Melinda Reust Williams v. Eric Butze
This case began as a petition for dependency and neglect, which petition was dismissed by consent of the parties. The juvenile court then proceeded to determine custody pursuant to its authority granted by Tenn. Code Ann. § 37-1-104(f). When custody was placed with Father/Appellee, Mother/Appellant appealed to the Circuit Court of Shelby County. The Circuit Court determined that the Tennessee Court of Appeals was the proper appellate court and entered an order transferring the appeal to us. Mother appeals that transfer. We affirm. |
Shelby | Court of Appeals | |
Beverly Waller v. Brenda Evans
In this appeal, we are asked to determine whether the decedent, Floyd Evans, Sr., possessed the requisite mental capacity to execute a power of attorney naming his brother as attorney-in-fact, which was subsequently used to change his life insurance and investment account beneficiary from his daughter to his wife. Additionally, we are asked to determine whether a confidential relationship existed between the decedent and his wife such that his wife exerted undue influence upon him in having his beneficiaries changed just prior to his death. We affirm the trial court, finding that the decedent possessed the requisite mental capacity and that the presumption of undue influence was rebutted through independent advice. |
Davidson | Court of Appeals | |
Tammy Renee Adams v. Jeffery Farrell Adams
This appeal involves a father’s petition to modify a parenting plan due to an alleged material change in circumstances. The trial court found that a material change in circumstances had occurred, and that it was in the children’s best interest for the father to be named primary residential parent. The trial court awarded the father his attorney’s fees. Mother appeals. We affirm and remand for further proceedings. |
Gibson | Court of Appeals | |
William L. Odom, Jr., et ux. v. Harold Oliver, et al.
Purchasers brought this action against sellers, realtor, and realty company of home that they purchased, alleging fraudulent concealment, and violation of the Tennessee Residential Property Disclosures Act. We affirm summary judgment for realtor and realty company, but we reverse the trial court’s order granting summary judgment to sellers. |
Hardeman | Court of Appeals | |
Joann Abshure, et al. v. Jeremiah Upshaw, M.D., et al.
This is a medical malpractice action filed against individual Defendants/Physicians and Defendant Hospital. Following Plaintiffs’ second Tennessee Rule of Civil Procedure 41.01 voluntary dismissal of individual Defendants, Defendant Hospital moved for summary judgment. The trial court awarded Hospital summary judgment upon concluding that the evidence demonstrated negligence on part of one Defendant/Physician only, and Plaintiffs had failed to assert a claim of vicarious liability against Hospital for the alleged negligence of its agent, Defendant/Physician prior to twice dismissing Physician. The trial court determined Plaintiffs’ cause of action had been extinguished where the statute of repose applicable to claim against Physician had expired, and that Plaintiffs had conferred on Physician an affirmative right not to be sued again. Plaintiffs appeal. We reverse in part, affirm in part, and affirm the award of summary judgment to Defendant Hospital. |
Shelby | Court of Appeals |
