David Weatherspoon v. Gayle Minard, MD
Plaintiff filed this health care liability action against the defendant doctor in 2000 and voluntarily non-suited it in 2008. Plaintiff re-filed the action in 2009. The defendant moved to exclude the plaintiff's standard-of-care expert for his failure to produce certain financial documents. The trial court granted the motion and excluded the expert five days before the scheduled trial date. Plaintiff requested leave to employ another standard-of-care expert in the five days before trial, which the trial court denied. The trial court ultimately dismissed the plaintiff's entire case because, without a standard-of-care expert, he was unable to state a health care liability claim. Plaintiff appealed, arguing that the trial court abused its discretion when it did not permit him to “emergently arrange” for an expert in the five days preceding the scheduled trial date. Discerning no error, we affirm. |
Shelby | Court of Appeals | |
In re B.C.
This is a termination of parental rights case. Mother appeals the termination of her parental rights on the ground of abandonment by willful failure to visit in the four months prior to the filing of the petition to terminate her parental rights. Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(i). Mother also appeals the trial court's finding that termination of her parental rights is in the child's best interest. Discerning no error, we affirm and remand. |
Obion | Court of Appeals | |
Gail D. Smith v. The King's Daughters and Sons Home
This is a retaliatory discharge case. Appellant worked for the Appellee nursing home. Appellant reported that patient abuse was occurring at her employer's facility. The Tennessee Department of Health investigated the Appellee's facility, but found no wrongdoing. In response to the Appellant's reporting, Appellee's employees allegedly harassed the Appellant. Appellant notified Appellee that she would not report to work the day after the alleged harassment. However, she also did not report to work or call in the day after that, and Appellee terminated her employment. The trial court granted Appellee's individual employees' motions to dismiss and later granted the Appellee's motion for summary judgment. The trial court also denied the Appellant's oral motion to amend her complaint at the summary judgment hearing. We affirm. |
Shelby | Court of Appeals | |
William Stephanson McCloud, II v. Kimberly Denise McCloud
This is a divorce action in which the trial court granted the husband a divorce and entered a parenting plan, designating the husband as the primary residential parent but awarding the wife substantially equal co-parenting time with the minor child. The husband appeals, raising numerous issues relating to the parenting plan. We affirm. |
Hamblen | Court of Appeals | |
Deanna Mae Baxley v. Clinton Shawn Baxley
This is an appeal of the general sessions court’s grant of a one-year extension of an order of protection. The respondent, a pro se litigant, appealed the extension to the circuit court. The circuit court initially dismissed the appeal as untimely. Upon further review, the circuit court transferred the appeal to this court for lack of jurisdiction. We hold that the circuit court had jurisdiction to hear the appeal. However, a final order for purposes of appeal was never entered. We remand this case for entry of a final order. |
Hamblen | Court of Appeals | |
Wendi Natasha Cook v. Bryan David Cook
In this post-divorce dispute, Father asserts the trial court erred in failing to find a material change in circumstances warranting a change in the residential schedule. We have reviewed the evidence and find that the significant change in Father’s work schedule, the parties’ admitted failure to adhere strictly to the parenting plan, and Father’s remarriage, when taken together, constitute a material change affecting the child’s best interest. Therefore, we reverse the trial court and remand the case for a determination of whether a modification of the residential schedule is in the child’s best interest. |
Putnam | Court of Appeals | |
Deborah Miller Gentile v. Michael Charles Gentile
This case involves the modification of a permanent parenting plan. Father asked the trial court to name him the primary residential parent, alleging a material change in circumstance. The court denied the request to change the primary residential parent, finding Father had failed to meet his burden of proof, but nonetheless modified the parties’ residential parenting schedule. On appeal, Father argues the trial court applied the wrong standard in determining whether a material change had occurred and erred in finding he had not met his burden of proof. We affirm the trial court’s finding that Father did not prove a material change in circumstance sufficient to justify a change in the primary residential parent; however, we find proof of a material change of circumstance sufficient to meet the lower standard for modification of the residential parenting schedule. Because in modifying the residential parenting schedule the trial court failed to consider the relevant factors in Tennessee Code Annotated § 36-6-106(a), we reverse in part and remand with instructions for the trial court to make a determination of whether it is in the child’s best interest to modify the residential parenting schedule and, if so, to modify the schedule accordingly. |
Williamson | Court of Appeals | |
City of Bartlett v. Pamela Moses
Upon review of the record transmitted to us on appeal, we conclude that this case should have been appealed to the Tennessee Court of Criminal Appeals. As we are without jurisdiction, we must transfer the case to the Court of Criminal Appeals in accordance with Rule 17 of the Tennessee Rules of Appellate Procedure. |
Shelby | Court of Appeals | |
Lester G. Murphy, Sr. v. State of Tennessee Child Support Services
A mother and father were divorced in 1993, and the mother was granted custody of the two children born of the marriage; the father was ordered to pay child support for their two children in the amount of $50 per week. In 1997 the children came into the custody of their maternal grandfather, and in 2007, the Tennessee Department of Human Services Child Support Division filed a petition to set child support against the father. After a hearing in February 2008 that the father did not attend, the trial court entered an order in March that increased his monthly support obligation and declared that he owed more than $31,000 in arrearages. Thereafter the father filed a pro se petition to modify the support order, asserting that the March 2008 order was defective; his petition was dismissed. On appeal to this court we held that the father was entitled to relief and vacated the order. The father thereafter filed a Motion for Further Relief in the trial court seeking reimbursement of child support payments he made pursuant to the March 2008 order; after a hearing on the motion, the court entered an order in accordance with the Court of Appeals’ opinion and denied father’s motion for further relief. Father appeals; finding no error, we affirm the judgment of the juvenile court. |
Humphreys | Court of Appeals | |
Avery Place, LLC, et al v. Highways, Inc.
Subdivision developer brought a breach of contract action against the contractor who had been engaged nine years previously to pave the roads in the subdivision after the contractor refused to complete the second phase of paving for the roads at the price specified in the contract. The contractor moved for summary judgment on the grounds that the provision in the contract relating to the second phase of paving was a separate offer which had not been accepted by the developer and that the action was barred by laches and the statute of limitations. Developer also moved for summary judgment. The trial court granted summary judgment to developer and denied summary judgment to contractor. Contractor appeals. Discerning no error, we affirm the judgment of the trial court. |
Putnam | Court of Appeals | |
Southeast Bank and Trust v. Joseph Caldarera, et al.
In this declaratory judgment action, one of the co-defendants filed an answer and counterclaim that was dismissed by the trial court upon motion of the plaintiff. Nearly two years later, the co-defendant filed a motion pursuant to Tennessee Rules of Civil Procedure 59 and 60.02, seeking relief from the order dismissing his counterclaim. Said co-defendant asserted that he was never served with the motion to dismiss or the order of dismissal, despite the representation of service by mail pursuant to the certificates of service contained within those pleadings. The trial court conducted a hearing on the co-defendant's motion for relief from the earlier order, allowing the co-defendant to present evidence to rebut the presumption of proper service based on the certificates of service. The court subsequently denied the co-defendant's motion for relief from the earlier order, determining that he had not presented clear and convincing evidence to rebut the presumption of proper service. The co-defendant has timely appealed. Discerning no error, we affirm. |
McMinn | Court of Appeals | |
Cameo Bobo v. City of Jackson, Tennessee
Appellant filed suit against the City of Jackson after her home was demolished, asserting causes of action for trespass and inverse condemnation. The City of Jackson filed an answer denying any liability and later moved for summary judgment on all claims. After a hearing, the trial court determined that the trespass claim should be dismissed due to governmental immunity. Moreover, the trial court concluded that Appellant had failed to timely assert her inverse condemnation claim. Appellant appeals only the dismissal of her inverse condemnation claim. Having reviewed the trial court's grant of summary judgment on that issue, we affirm. |
Madison | Court of Appeals | |
Deborah Bray v. Radwan R. Khuri, MD
This is a health care liability action arising from decedent's death. Appellant filed this action against Dr. Radwan Khuri. Dr. Khuri moved to dismiss this action for failure to comply with the notice requirement of Tennessee Code Annotated section 29-26-121 et seq. Specifically, Dr. Khuri challenged whether the medical release provided with the pre-suit notice letter was compliant with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). The trial court agreed with Dr. Khuri and dismissed the action with prejudice. Appellant timely appealed. We affirm. |
Shelby | Court of Appeals | |
Corey McKinnie v. State of Tennessee
Appellant appeals the Tennessee Claims Commission’s dismissal of his healthcare liability claim against the Appellee, State of Tennessee. Appellant failed to include a certificate of good faith with his complaint, as required by Tennessee Code Annotated Section 29-26-122. Accordingly, the State filed a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss Appellant’s complaint. The Claims Commission granted the State’s motion. We affirm. |
Court of Appeals | ||
Timothy Messmaker v. Heather L. Messmaker
This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, from the denial of a motion for recusal filed by Timothy Messmaker ("Former Husband") in the parties' post-dissolution modification proceedings. Having reviewed the petition for recusal appeal filed by Former Husband, and finding no error in Trial Court's ruling, we affirm. |
Carter | Court of Appeals | |
Virginia Louise Burke et al v. Huntsville NH Operations LLC d/b/a Huntsville Manor
The notice of appeal in this matter was filed with the trial court after expiration of the thirty-day deadline provided in Tennessee Rule of Appellate Procedure 4. This Court subsequently ordered the appellants to show cause why the appeal should not be dismissed as untimely. In response, the appellants filed a motion with the trial court, pursuant to Tennessee Rule of Civil Procedure 60.01, seeking alteration of the filing date on the notice of appeal. The trial court granted such relief while the appeal was pending in this Court, despite the absence of a remand. The defendant filed a motion to dismiss the appeal, which was deferred to the panel deciding this case. We conclude that absent a remand from this court, the trial court was without jurisdiction to act on the Tennessee Rule of Civil Procedure 60.01 motion while this appeal was pending. We therefore dismiss this appeal as untimely. |
Scott | Court of Appeals | |
Steve Hollar v. Deicy C. Hollar
In this divorce action, Husband appeals the trial court’s decision to invalidate the parties’ antenuptial agreement and the trial court’s classification and division of the marital estate. The trial court declined to enforce the antenuptial agreement because, inter alia, Wife could not read the agreement - she could not speak or read English - and she was not represented by counsel. Finding that the evidence does not preponderate against any of the trial court’s findings, we affirm. |
Pickett | Court of Appeals | |
Cassidy Lynne Aragon v. Reynaldo Manuel Aragon
Father and Mother were divorced in April 2010; a parenting plan was entered into providing that the parties would share equal parenting time. In March 2012, pursuant to the parental relocation statute at Tenn. Code Ann. § 36-6-108, Father notified Mother that he intended to relocate to Tucson, Arizona, for an employment opportunity and filed a petition requesting to modify the parenting plan and relocate. Mother filed a petition in opposition to relocation, stating, inter alia, that Father’s proposed move served no reasonable purpose. The trial court determined that Father’s move served no reasonable purpose; the court did not make the best interests determination as required by the relocation statute. Father appealed and this court vacated the judgment and remanded the case for the court to consider the best interests of the child and to make findings in that regard. On remand, the court made findings relative to the factors as designated in the relocation statute and concluded that relocation was not in the best interests of the child. Finding no reversible error, we affirm the decision of the trial court. |
Montgomery | Court of Appeals | |
In re Andrea R.
This is the second appeal from a 2008 petition filed by Mother to set Father’s child support obligation for the parties’ five-year-old child, to make an upward deviation to pay for private school, and to determine the amount of retroactive support owed. Father responded, contending that an upward deviation for private school was not appropriate. He also contended that he should be credited for voluntary payments he made throughout the retroactive period. The trial court established Father’s current support obligation, which included an upward deviation for private school; however, the court made no findings to justify the deviation as required by Tenn. Comp. R. & Regs. 1240-2-4-.07(2)(a)(1). Father appealed the upward deviation. We reversed and remanded with instructions for the trial court to “make the requisite findings of fact to determine, inter alia, whether private schooling for the child is appropriate based upon the facts of this case.” In re Andrea A.R., No. M2011-00574-COA-R3-JV, 2012 WL 397475, at *7-8 (Tenn. Ct. App. Feb. 7, 2012). On remand, Mother sought to introduce additional evidence about the appropriateness of private school. The trial court declined to accept additional evidence, relied on the evidence introduced in the first trial, and, based on its written findings of fact, concluded that deviating from the child support guidelines was not appropriate because the parties could not afford private school. The trial court also established Father’s child support obligation for each of the six years preceding the filing of the petition to set support, calculated Father’s total obligation for the retroactive period, determined that Father’s voluntary payments exceeded that obligation, and held that no arrearage was owed. Because Mother filed a new petition to modify the current support obligation, which was consolidated with the above petition, the trial court allowed each party to introduce evidence of their current income. Based on that evidence, the court imputed income to Mother because she failed to provide reliable evidence of her income and modified Father’s child support obligation, which was established pursuant to the guidelines without a deviation. Mother appealed, raising several issues. We affirm in all respects. |
Davidson | Court of Appeals | |
In re Darius S.
In this post-divorce custody dispute, Father challenges the trial court’s decision to make Mother the primary residential parent. Because Father failed to file a transcript or a statement of the evidence, we must affirm the decision of the trial court. |
Rutherford | Court of Appeals | |
Billy Carl Tomlin, et al v. Betty Baxter, et al
This appeal arises from a judgment for a post-foreclosure deficiency owing on a promissory note. The dispositive issue on appeal is whether the trial court erred in denying Defendants’ motion for relief under Tenn. R. Civ. P. 60.02 from the final judgment. After Defendants filed an answer to the complaint, they subsequently failed to comply with orders of the court, and, upon motion of Plaintiffs, a default judgment on liability was entered in 2012. The hearing on damages, which was set to be heard four weeks later, was continued by agreement more than a dozen times over two years while the parties attempted to reach a settlement. No settlement was reached, and the hearing on damages was held in May 2014, during which Plaintiffs introduced evidence to establish their damages; however, neither Defendants nor their counsel appeared. Following the evidentiary hearing on damages, the court awarded Plaintiffs damages of $153,328.26, and a final judgment was entered. Three months later, Defendants filed a “Motion to Set Aside Default Judgment” under Tenn. R. Civ. P. 60.02, seeking to set aside the May 2014 order on the grounds of excusable neglect. The trial court denied relief. On appeal, Defendants contend the court erred in denying their motion because their failure to attend the damages hearing can be justified by confusion and lack of notice. They also contend the court erred in awarding default judgment because they filed a joint answer to the complaint. We conclude that the damages judgment Defendants sought to have set aside was not a default judgment, but was a final judgment following an evidentiary hearing. Further, the trial court did not abuse its discretion in denying Rule 60 relief from the damages judgment because Defendants failed to establish excusable neglect for not attending the 2014 hearing. We also hold that, although Defendants filed an answer to the complaint, the trial court did not abuse its discretion in entering a default judgment as to liability because Defendants failed to defend the claim in the time frame as ordered by the court. See Tenn. R. Civ. P. 55.01. Accordingly, we affirm the trial court in all respects. |
Williamson | Court of Appeals | |
Teresa Patterson v. Wal-Mart Stores East, LP
This appeal arises from the trial court's grant of summary judgment to the defendant-property owner in a premises liability suit. Discerning no error, we affirm. |
Shelby | Court of Appeals | |
Theodore Franklin Davis v. Knox County, Tennessee
We granted this interlocutory appeal in order to consider whether Knox County can rely upon the defense of quasi-judicial immunity with respect to the allegations against it in the complaint filed by the plaintiff Theodore Franklin Davis. At an earlier time, Davis entered into a plea agreement in criminal court. In the agreement, he consented to comply with all of the requirements of the Knox County Pretrial Services Office during his six-month probation. One of the requirements was that he would wear a Secure Continuous Remote Alcohol Monitoring unit (the SCRAM) to track his alcohol consumption. Pretrial Services – a department of the Knox County Sheriff's Office and an agent of Knox County – installed and monitored the device. Davis alleges that the agents of Pretrial Services were negligent in the installation of, and their refusal to adjust, the SCRAM. He alleges that the SCRAM exacerbated his diabetic condition. Knox County raised the defense of quasi-judicial immunity and later moved to dismiss. The trial court denied Knox County's motion, holding that it was not entitled to raise the defense of quasi-judicial immunity. We hold that Knox County is entitled to assert the defense of quasi-judicial immunity under Tenn. Code Ann. § 29-20-206 (2012). Accordingly, we reverse the trial court's judgment and dismiss the plaintiff's complaint. |
Knox | Court of Appeals | |
In re C.J.A.H.
T.L. (Father) appeals the trial court's judgment terminating his parental rights with respect to his daughter C.J.A.H. (the Child). The court terminated Father's rights on the ground of abandonment by willful failure to support. It did so after an ex parte hearing at which neither Father nor his attorney was present because neither had received notice of the hearing. After subsequent hearings, where Father was present with counsel and introduced evidence, the trial court entered a second order “reaffirming” its earlier termination decision, relying on proof from both the ex parte hearing and later hearings. We hold that the trial court erred in relying on evidence presented at the ex parte hearing. We further hold that the evidence preponderates against the trial court's finding that Father's failure to pay child support was willful. We reverse the judgment of the trial court and dismiss the petition for termination with prejudice. |
Hamilton | Court of Appeals | |
Tracey Melinda Cook v. Tracy Dean Iverson
Father and Mother divorced in February 2012. Later that same year, Father’s employer notified him that his high-paying sales job would be eliminated. Due to his unemployment, Father filed a petition to modify his alimony and child support obligations. The trial court concluded there was a material change in circumstances and reduced Father’s monthly alimony and child support obligations. Father argues on appeal that the trial court erred by applying an incorrect legal standard; not reducing his alimony and child support obligations further; and declining to reduce his alimony in futuro obligation retroactive to the date of his petition. As an additional issue, Mother argues that the trial court erred in measuring any change in circumstances from the final decree of divorce rather than an agreed order addressing payments to Mother entered after Father learned that he was losing his job. Both Father and Mother seek an award of their attorney’s fees incurred on appeal. After a review of the record on appeal, we conclude that the trial court correctly found a material change in circumstances but erred in imputing income to Father. Therefore, we affirm in part, reverse in part, and remand for further proceedings. |
Williamson | Court of Appeals |
