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| Four Seasons Heating & Air Conditioning vs. Beers Skanska.
M2002-02783-COA-R3-CV
This is a breach of contract case. The defendant general contractor was hired to construct a building on a state college campus. The contractor hired the plaintiff subcontractor to perform substantial work on the job. During the course of the project, the subcontractor sought additional labor costs incurred in the project. This issue was not resolved. Later, the subcontractor sought from the contractor the retainage kept by the contractor. When the check was ready, the subcontractor sent its project manager to retrieve it. In order to get the check, the project manager was required by the contractor to sign a document releasing all claims between the contractor and the subcontractor. Later, the subcontractor filed this lawsuit, seeking the additional labor costs. The contractor filed a motion to dismiss, arguing that, by the project manager's signature on the release, the subcontractor waived its claim to the additional labor costs. The subcontractor argued that its project manager did not have the authority to bind the company to the release. After a hearing, the trial court dismissed the subcontractor's complaint. The subcontractor now appeals. We reverse, finding that the evidence was insufficient to establish as a matter of law that the project manager had actual or apparent authority to bind the subcontractor or to establish as a matter of law that the subcontractor ratified the release signed by the project manager.
Authoring Judge: Judge Holly M. Kirby
Originating Judge:Carol A. Catalano |
Montgomery County | Court of Appeals | 12/23/03 | |
| In re: K.N.R., et al
M2003-01301-COA-R3-PT
Authoring Judge: Judge Frank Clement, Jr.
Originating Judge:Max D. Fagan |
Robertson County | Court of Appeals | 12/23/03 | |
| Alan Reece Cunningham vs. Sylvia Delain Cunningham
M2002-01659-COA-R3-CV
The case involves the dissolution of a marriage of seven years. The trial court granted the divorce to the wife, divided the marital property between the parties in roughly equal proportions, found that the wife was not economically disadvantaged, and declined to award her any form of alimony. The wife appeals the court's alimony decision. We find the wife is entitled to alimony because, contrary to the trial court's finding, we believe the evidence shows that she is economically disadvantaged when compared to her former spouse. We modify the judgment to award her alimony in solido.
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Nolan R. Goolsby |
Putnam County | Court of Appeals | 12/22/03 | |
| Clement Bernard vs. Sumner Regional Health System
M2002-02962-COA-R3-CV
This case was dismissed by the trial court on summary judgment for res judicata. Plaintiff had previously filed an action against the same defendant for actions of defendant surrounding a sexual harassment allegation. The previous action was for procurement of breach of contract and defamation. A final judgment has been rendered in that case. The current action is for failure to follow internal procedures resulting in breach of contract. The issue to be decided on appeal is whether these two cases involve the same "cause of action" necessary for a finding of res judicata. We find that they do involve the same "cause of action" and affirm the trial court's decision.
Authoring Judge: Judge William B. Cain
Originating Judge:Tom E. Gray |
Sumner County | Court of Appeals | 12/22/03 | |
| Erik Maasikas vs. Metropolitan Government of Nashville and Davidson County
M2002-02652-COA-R3-CV
Appellant, a former Metropolitan Nashville police officer, appeals an adverse judgment of the Chancery Court of Davidson County wherein that court affirmed the decision of the Metropolitan Civil Service Commission imposing a two-day suspension for a disciplinary infraction. We affirm the trial court.
Authoring Judge: Judge William B. Cain
Originating Judge:Ellen Hobbs Lyle |
Davidson County | Court of Appeals | 12/22/03 | |
| Alice Hale vs. Wayne Culpepper
M2002-01955-COA-R3-CV
Following the death of a child's mother, the maternal grandmother filed a petition to establish grandparent visitation with her grandson. After a hearing where the trial court heard testimony and after an independent psychological report, the trial court awarded visitation to the grandmother. The father appeals, arguing that the evidence preponderates against the trial court's decision. Because the record contains no evidence of danger of substantial harm to the child, we reverse the decision of the trial court.
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:L. Craig Johnson |
Coffee County | Court of Appeals | 12/22/03 | |
| Thomas G. Hyde vs. Ishikawa Gasket America
M2002-02653-COA-R3-CV
This case involves the breach of a contract when defendant refused to pay fees to which plaintiff claims an entitlement. The trial court below found that, under the facts of the case, the contract did not apply and, therefore, refused to award plaintiff its fees. Instead, the trial court awarded plaintiff a lesser amount under the theory of quantum meruit. Plaintiff timely appealed that decision and, for the reasons stated below, this Court reverses the ruling of the lower court.
Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:Robert E. Corlew, III |
Rutherford County | Court of Appeals | 12/22/03 | |
| Lewis Langley vs. Sarah Langley
M2002-02278-COA-R3-CV
Husband's proposed division of marital assets was adopted by the trial court. Wife received more than one-half of the assets, amounting to one and one-quarter million dollars, mostly liquid. Husband was nevertheless ordered to pay substantial alimony, both in solido and in futuro, together with attorney fees and certain expenses, including the maintenance of a three-quarter million dollar policy of life insurance with Wife as beneficiary. The alimony in solido award is affirmed, and the remaining awards are vacated.
Authoring Judge: Sr. Judge William H. Inman
Originating Judge:Marietta M. Shipley |
Davidson County | Court of Appeals | 12/19/03 | |
| Govindaswamy Nagarajan vs. Sandra Scheick
M2000-02323-COA-R3-CV
This appeal is an outgrowth of complaints filed by a group of Tennessee State University students regarding the performance of their physics professor. After the students complained to the university, the professor filed a pro se complaint in the Chancery Court for Davidson County against the Tennessee Board of Regents, the university, four university administrators, and twenty-four students, alleging breach of contract, defamation, intentional infliction of emotional distress, and discrimination based on age, race, and national origin. The trial court dismissed the professor's complaint in its entirety in response to motions to dismiss filed by the university defendants and a number of the student defendants. The professor then filed serial "motion[s] to vacate the order of dismissal for just cause." The trial court denied the first motion and, treating the second motion as a Tenn. R. Civ. P. 60.02(2) motion, also denied the second. On this appeal, the professor seeks to raise twelve issues regarding the merits of his claim. However, the only matter properly before us is the denial of his second "motion to vacate the order of dismissal for just cause." We have determined that the trial court properly denied this motion. We have also determined that this appeal is frivolous.
Authoring Judge: Judge William C. Koch, Jr.
Originating Judge:Ellen Hobbs Lyle |
Davidson County | Court of Appeals | 12/19/03 | |
| Thomas K. Bowers vs. Gutterguard of Tennessee
M2002-02877-COA-R3-CV
The defendant challenges the Circuit Court's dismissal of an appeal from General Sessions Court for failure to comply with Davidson County Local Rule of Practice 20(b). The Local Rule required the appealing party to set the matter for trial no more than 45 days following the Circuit Court Clerk's receipt of the appeal. Though the defendant had filed a motion to set, an order setting the matter for trial had not been entered when the Circuit Judge dismissed the appeal and made the judgment of the General Sessions Court the final judgment. The defendant/appellant sought Rule 60.02(1) relief, claiming excusable neglect, which was denied. Based upon recent authority, determination of "excusable neglect" for Rule 60 purposes now requires an evaluation of three factors: whether the defaulting party's conduct was willful, whether there exists a meritorious defense, and whether the non-defaulting party has been prejudiced. We find the defendant's negligence was not willful and that the plaintiff suffered no prejudice; however, the record is silent concerning whether the defendant has a meritorious defense. Therefore, we reverse the trial court and remand the matter to the Circuit Court for further proceedings consistent with this ruling.
Authoring Judge: Judge Frank Clement, Jr.
Originating Judge:Hamilton V. Gayden, Jr. |
Davidson County | Court of Appeals | 12/17/03 | |
| Kathy Clark vs. Randall McClung
M2003-00552-COA-R3-CV
Due to plaintiffs' failure to file an alias summons within one year of the date the original complaint and summons were filed, the Circuit Court granted defendant's Motion to Dismiss for plaintiffs' failure to Comply with Rule 3, Tenn. R. Civ. P. Plaintiffs appealed asserting the error was due to the Circuit Court Clerk's refusal to file the alias summons and that the trial court abused its discretion in dismissing the case. We affirm the judgment of the trial court.
Authoring Judge: Judge Frank Clement, Jr.
Originating Judge:Hamilton V. Gayden, Jr. |
Davidson County | Court of Appeals | 12/17/03 | |
| Dept of Children's Srvcs. vs. A.W.S. & E.S. In Re: R.T.S.
E2002-02227-COA-R3-JV
The State of Tennessee, Department of Children's Services ("DCS") filed a petition seeking to terminate the parental rights of A.W.S. ("Mother") and E.S. ("Father"), the biological parents of the minor child, R.T.S. ("the Child"). The Juvenile Court granted DCS' petition to terminate Mother's and Father's parental rights. Both Mother and Father appeal. We affirm.
Authoring Judge: Judge David Michael Swiney
Originating Judge:William T. Denton |
Blount County | Court of Appeals | 12/17/03 | |
| Ronald Paul v. State
M2003-01244-COA-R9-CV
Appellant, a state prison inmate, filed a claim with the Tennessee Claims Commission against the State of Tennessee for the alleged malpractice of Dr. Paul Somers, a physician acting under contract with the Department of Corrections, to provide medical care for inmates. The Commission granted summary judgment on the basis that Dr. Somers was not a "state employee" within the meaning of Tennessee Code Annotated section 8-42-101(a)(3). We affirm the action of the Commission.
|
Court of Appeals | 12/16/03 | ||
| 03-03-026-CC
03-03-026-CC
Originating Judge:A. Andrew Jackson |
Dickson County | Court of Appeals | 12/16/03 | |
| Morristown Surgery v. Tennessee Health Facilities Commission
M2002-02872-COA-R3-CV
This appeal under the Administrative Procedures Act challenges a chancery court order affirming the dismissal of the Appellant's Petition for Contested Case Review. We affirm.
Authoring Judge: Judge William B. Cain
Originating Judge:Ellen Hobbs Lyle |
Davidson County | Court of Appeals | 12/15/03 | |
| Jennifer Biscan v. Franklin Brown
M2001-02766-COA-R3-CV
After attending a party where alcohol was present, a minor intoxicated driver and minor guest passenger were involved in an automobile accident in which the passenger suffered serious injury. The passenger sued the driver and the adult host of the party. The jury awarded the minor guest passenger damages and allocated fault 70% to the minor intoxicated driver, 15% to the adult party host, and 15% to the minor guest passenger. The driver and the host appeal various rulings of the trial court. We affirm.
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Carol L. Soloman |
Davidson County | Court of Appeals | 12/15/03 | |
| In the Matter of: D.L.(P.)C.,et al
M2003-00088-COA-R3-CV
Mother appeals the trial court's award of custody of her four minor children to the Tennessee Department of Children's Services based on a finding of dependency and neglect. We affirm.
Authoring Judge: Judge David R. Farmer
Originating Judge:Muriel Robinson |
Davidson County | Court of Appeals | 12/15/03 | |
| Cecil Jacobs v. Edwin Underhill
M2002-02866-COA-R3-CV
The appellants challenge the trial court's Order commanding them to remove a portion of their patio and garage and any portion of their residence constructed since 1999 which encroaches on the appellees' property. We affirm.
Authoring Judge: Judge William B. Cain
Originating Judge:Timothy L. Easter |
Perry County | Court of Appeals | 12/15/03 | |
| Dept.of Child.Services vs. G.C.
E2003-01532-COA-R3-CV
The trial court terminated the parental rights of G.C. ("Mother") with respect to her minor children, I.A.J.C. (DOB: April 3, 1999), M.L.K.L.II (DOB: July 31, 2000), and J.E.L. (DOB: July 22, 2002). Mother appeals, arguing that the evidence preponderates against the trial court's finding, by clear and convincing evidence, that statutory grounds exist for termination. We affirm.
Originating Judge:Suzanne Bailey |
Hamilton County | Court of Appeals | 12/12/03 | |
| Bridgecourt Apartments vs. Carmen Ellerbe
E2003-01298-COA-R3-CV
Plaintiff paid off mortgage on apartments and then sued for an accounting, alleging overpayment. The Trial Court invoked the voluntary payment rule and dismissed the case. On appeal, we affirm.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Daryl R. Fansler |
Knox County | Court of Appeals | 12/12/03 | |
| Walter E. Grantham, IIl vs. Robert Larry McGill
E2003-02005-COA-R3-CV
Mary Frances McGill sued Robert Larry McGill ("Defendant") seeking return of personal property and claiming fraudulent execution of a deed to real property. Ms. McGill died and Walter E. Grantham, II, Administrator C.T.A. of the Estate of Mary Frances McGill ("Plaintiff") was substituted as plaintiff in this case. The case was tried and the Trial Court entered a final decree dismissing the complaint. Plaintiff appeals. The record contains neither a transcript nor a statement of the evidence. We affirm.
Authoring Judge: Judge David Michael Swiney
Originating Judge:Howell N. Peoples |
Hamilton County | Court of Appeals | 12/11/03 | |
| Lorraine Miller v. Bruce Miller
M2002-02731-COA-R3-CV
The trial court awarded a divorce to a sixty-four year old woman with multiple health problems, and ordered her former husband to pay her $700 per month as alimony in futuro. The husband argues on appeal that the trial court erred, because the wife was capable of working, and was therefore only entitled to rehabilitative alimony. We affirm the trial court.
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:R.E. Lee Davies |
Williamson County | Court of Appeals | 12/10/03 | |
| Kevin Demers v. Karen Demers
M2002-01970-COA-R3-CV
This involves a post-divorce petition to reduce child support. The mother and father were divorced in 1998, and the mother was awarded custody of the parties' three children. The father was ordered to pay child support plus private school tuition, based on substantial annual earnings from self-employment. In December 2000, the father filed a petition to have his child support payments reduced based on a decline in his business. The father later liquidated the assets of his business and quit work. He subsequently amended his petition, asserting that he had earned no income since the liquidation of his business. After a bench trial, the trial court rejected the father's petition for a reduction in child support, finding that the father was willfully underemployed. The father now appeals. We affirm, finding that the evidence does not preponderate against the trial court's determination that the father was willfully underemployed.
Authoring Judge: Judge Holly M. Kirby
Originating Judge:Ross H. Hicks |
Robertson County | Court of Appeals | 12/10/03 | |
| Kennedy Woods v. Nashville and Davidson County
M2001-03143-COA-R3-CV
This case involves an Administrative Procedures Act appeal from the chancery court's determination of Appellant's Petition for Judicial Review. The petition sought review of the Civil Service Commission's final order affirming Appellant's termination for violation of the Metro Nashville Fire Department's Zero-Tolerance Policy on Substance Abuse. We affirm the order of the trial court.
Authoring Judge: Judge William B. Cain
Originating Judge:Irvin H. Kilcrease, Jr. |
Davidson County | Court of Appeals | 12/10/03 | |
| American Excavators, LLC., v. RCR Building Corporation, et al.
M2002-01757-COA-R3-CV
American Excavators, LLC ("Plaintiff") entered into a subcontract agreement with RCR Building Corporation ("Defendant") which required Plaintiff to perform excavation and utilities work for the Williamson County community services building. The subcontract agreement provided for certain excavation work to be done for a lump sum and states that "[a]ny additional undercutting and refilling of areas due to unsuitable soils will be done for a unit price of $12.50 per cubic yard." Plaintiff claims that while performing the work, it encountered a large amount of unsuitable soil that it removed and replaced. Plaintiff later submitted change orders to Defendant requesting to be paid for the removal of the alleged unsuitable soil. Defendant paid a portion of the change orders, but refused to pay the entire amount. Plaintiff sued for breach of contract. After a bench trial, the Trial Court dismissed Plaintiff's claims against Defendant. Plaintiff appeals. We affirm.
Authoring Judge: Judge David Michael Swiney
Originating Judge:Chancellor R.E. Lee Davies |
Williamson County | Court of Appeals | 12/04/03 |