C. Wesley Fowler as Administrator Ad Litem of the Estate of Frank Jackson v. City of Memphis, et al.
In this premises liability case, the plaintiff appeals from the trial court's grant of summary judgment to a governmental defendant. We affirm in part, vacate in part, and remand. |
Shelby | Court of Appeals | |
Alice Wheeler Et Al v. Mark Abbott Et Al.
Catherine McCulley, Jean Abbott, Steven Abbott, Jerry Abbott, Larry Abbott, Diane West, and Geraldine Abbott (“Plaintiffs”) sued Mark Abbott and Stephanie Abbott (“Defendants”)1 with regard to an alleged easement located across real property in Sevier County, Tennessee. During the pendency of the suit, Catherine McCulley died and a motion was made to substitute her four children as party plaintiffs. Without benefit of a hearing, the Chancery Court for Sevier County (“the Trial Court”) entered an order allowing the substitution. The case then was tried, and the Trial Court entered its judgment finding and holding, inter alia, that “the Plaintiffs, the heirs of Elmer Abbott, have an easment across the property of the Defendant, Mark Abbott . . . .” Defendants appeal to this Court raising several issues. We find and hold that the motion for substitution and the Trial Court’s order granting the motion failed to comply with Tenn. R. Civ. P. 25, which deprived Defendants of an opportunity to be heard prior to entry of the order allowing substitution. We, therefore, vacate both the April 22, 2015 order allowing substitution of parties and the June 5, 2015 judgment holding that “the Plaintiffs” have an easement, and we remand this case for further proceedings consistent with this Opinion. |
Sevier | Court of Appeals | |
Tina Dawn Garner v. Scott Whitney Garner
This accelerated interlocutory appeal arises from the trial court's denial of Appellant's motion for recusal. Having reviewed the trial court's ruling on the motion for recusal pursuant to the de novo standard of review required under Tennessee Supreme Court Rule 10B, we affirm the judgment of the trial court. |
Hardin | Court of Appeals | |
Jorge A. Alfonso, et al. v. Linda V. Bailey, Executrix and Personal Representative of the Estate of Robert M. Bailey, et al.
This appeal stems from a foreclosure. Jorge A. Alfonso and Madelyn Alfonso (“Plaintiffs”) defaulted on their mortgage on real property owed to CitiMortgage, Inc. (“Citi”). Plaintiffs wanted to effectuate a short sale in order to avoid foreclosure. However, certain real estate investors (“Defendants”) attended the foreclosure sale, bid on, and purchased the property. Plaintiffs sued Defendants and Citi in the Chancery Court for Sevier County (“the Trial Court”), alleging in part that Defendants knew that Plaintiffs and Citi were engaged in discussions to complete a short sale but purchased the property anyway. The Trial Court granted Citi’s motion to dismiss finding that Citi had the right to pursue foreclosure even if it was in talks with Plaintiffs to conduct a short sale. Plaintiffs do not appeal that order. The Trial Court later granted a motion to dismiss claims against the remaining Defendants. Plaintiffs appeal to this Court. We find and hold that Plaintiffs have stated no cause of action against the remaining Defendants. We affirm the judgment of the Trial Court. |
Sevier | Court of Appeals | |
Amanda Peters-Asbury, et al v. Knoxville Area Transit, Inc.
This is a Governmental Tort Liability Act (GTLA) case involving a plaintiff who fractured her ankle when she fell exiting a bus owned and operated by the defendant. The plaintiff filed this lawsuit alleging that the defendant negligently caused her fall by dropping her off in a dangerous location and/or causing the bus to move as she exited. Following a non-jury trial, the trial court found that the defendant did not negligently drop the plaintiff off in an unsafe location but did negligently cause the bus to move as she exited. The trial court assessed liability against the defendant and awarded the plaintiff $101,969.30 in damages. The defendant timely appealed. Having thoroughly reviewed the record, we hold that the evidence adduced at trial does not support the trial court’s finding that the bus was moving as the plaintiff exited. We therefore reverse the judgment of the trial court. |
Knox | Court of Appeals | |
Robert Harold Douglas v. Susan Mercedes Douglas
In this divorce proceeding, Husband appeals from the trial court’s classification of an account as Wife’s separate property. On appeal, Husband asserts that the account is marital property based on the doctrine of transmutation. Discerning no error, we affirm. |
Benton | Court of Appeals | |
Ashli Fallon Bryan v. Billie Dee Miller
At issue in this case is the custody of a minor child. Although the child had previously been in the physical custody of his maternal grandmother pursuant to a temporary order, the child’s mother regained custody after the grandmother failed to show that the child would be subjected to substantial harm if returned to the mother. We affirm. |
Montgomery | Court of Appeals | |
Jennifer L. Al-Athari, et al v. Luis A Gamboa, et al
In the second appeal of this case, Plaintiffs seek reversal of orders awarding damages to Defendants for Plaintiffs’ prosecution of a frivolous appeal and denying motions for relief from orders which served as the basis of the first appeal. Finding no error, we affirm the judgments. We have also concluded that this appeal is frivolous and remand for the trial court to determine the amount of damages which Defendants are entitled to pursuant to Tenn. Code Ann. § 27-1-122. |
Davidson | Court of Appeals | |
In Re: Ryder R.
This case involves the termination of a mother’s parental rights to her son. The trial court found that two statutory grounds for termination were proven by clear and convincing evidence – abandonment by willful failure to support and persistence of conditions. The trial court also concluded that termination of the mother’s parental rights was in the child’s best interest. We conclude that there is not clear and convincing evidence of either ground for termination relied upon by the trial court. Therefore, we reverse the termination of the mother’s parental rights. |
Williamson | Court of Appeals | |
Vincent Sims v. Wayne Carpenter, et al
Capital defendant brought a declaratory judgment action seeking to enjoin his execution, asserting that he meets the statutory criteria of being intellectually disabled and, therefore, is ineligible to be sentenced to death. Defendants, the warden of the institution where he is incarcerated and the Tennessee Attorney General, moved to dismiss the complaint on the grounds that the trial court lacked subject matter jurisdiction, that the suit was barred by the doctrine of sovereign immunity, and that the suit failed to state a claim for relief. The trial court granted the motion and dismissed the case. Finding no error, we affirm the holding of the trial court. |
Davidson | Court of Appeals | |
Tyrone Chalmers v. Wayne Carpenter, et al
Capital defendant brought a declaratory judgment action seeking to enjoin his execution, asserting that he meets the statutory criteria of being intellectually disabled and, therefore, is ineligible to be sentenced to death. Defendants, the warden of the institution where he is incarcerated and the Tennessee Attorney General, moved to dismiss the complaint on the grounds that the trial court lacked subject matter jurisdiction, that the suit was barred by the doctrine of sovereign immunity, and that the suit failed to state a claim for relief. The trial court granted the motion and dismissed the case. Finding no error, we affirm the holding of the trial court. |
Davidson | Court of Appeals | |
Lee Stack, III v. Joann Valerie Stack
This appeal arises from post-divorce efforts to modify custody and child support established in a Montana divorce. After the divorce, the mother and the child moved to Tennessee. Although the father was living in Montana, he filed a petition to modify parenting time and child support and for other relief in Tennessee. The trial court found a material change in circumstance sufficient to modify the residential parenting schedule and that modification would be in the child’s best interest. The trial court also found a significant variance between the Montana child support amount and the amount presumed under the Tennessee Child Support Guidelines and modified the child support order. After reviewing the record, we conclude that the trial court lacked subject matter jurisdiction to modify the Montana custody determination but did have authority to enter a temporary order enforcing visitation. We also find that, although the court had jurisdiction to modify the Montana child support order, the court incorrectly calculated the mother’s gross income and failed to credit the father for his payment of the child’s health insurance premium. Therefore, we vacate and remand with instructions to dismiss the Father’s petition to the extent it seeks modification of the parenting time. To the extent Father seeks to enforce visitation with his child, we affirm the specific visitation schedule ordered by the trial court and remand for the court to set a time for expiration of the temporary visitation schedule. To the extent the petition seeks to modify child support, we vacate and remand for a calculation of child support in accordance with the Tennessee Child Support Guidelines and this opinion. |
Williamson | Court of Appeals | |
In Re Destiny S.
This appeal involves the termination of a mother’s parental rights to her minor child. Following a bench trial, the trial court found that clear and convincing evidence existed to support termination on the statutory grounds of substantial noncompliance with a permanency plan, persistent conditions, and severe child abuse. The court further found by clear and convincing evidence that termination was in the child’s best interest. The mother appeals. Having reviewed the record, we hold that only the ground of substantial noncompliance with a permanency plan is supported by clear and convincing evidence. Additionally, we hold that clear and convincing evidence supports the trial court’s finding that termination is in the child’s best interest. Because the record contains clear and convincing evidence to support one statutory ground for termination and that termination is in the child’s best interest, we affirm the trial court’s termination of the mother’s parental rights. |
Putnam | Court of Appeals | |
Accredo Health Group, Inc. v. GlaxoSmithKline, LLC f/k/a SmithKline Beecham Corporation d/b/a GlaxoSmithKline
The plaintiff purchaser of pharmaceuticals brought suit against the defendant manufacturer of the pharmaceutical for failure to provide discounted pricing based on the parties‘ contract. The defendant filed a motion for partial summary judgment based on the issue of contract interpretation. The trial court granted the defendant‘s motion. The plaintiff requested permission for this interlocutory appeal challenging the trial court‘s interpretation of the parties‘ contract. Discerning no error, we affirm. |
Shelby | Court of Appeals | |
In Re Keith W., Jr., et al.
This appeal involves the termination of a father’s parental rights to his two children. In 2011, the children were adjudicated dependent and neglected, and the children were placed in the custody of their great-grandmother, and later, in the custody of a family friend. After the children had lived with the family friend for three continuous years, the caregiver filed a petition to terminate the father’s parental rights. The trial court terminated the father’s rights on the grounds of abandonment, Tenn. Code Ann. § 36-1-113(g)(1), as defined by both Tenn. Code Ann. § 36-1-102(1)(A)(i) and Tenn. Code Ann. § 36-1-102(1)(A)(iv), for failure to visit and support and for engaging in conduct that exhibits a wanton disregard for the welfare of the children. The court further found termination was in the children’s best interests. We have concluded that the trial court erred by relying on Tenn. Code Ann. § 36-1-102(1)(A)(iv), abandonment by wanton disregard, as a ground to terminate the father’s rights. We also hold that the court erred in terminating the father’s rights on the basis of his failure to support the children. However, the trial court correctly determined that the father abandoned the children by willfully failing to visit. Thus, we affirm the trial court’s judgment in part and reverse in part. |
Haywood | Court of Appeals | |
Pervis Tyrone Payne v. Wayne Carpenter, et al
Capital defendant brought a declaratory judgment action seeking to enjoin his execution, asserting that he meets the statutory criteria of being intellectually disabled and, therefore, is ineligible to be sentenced to death. Defendants, the warden of the institution where he is incarcerated and the Tennessee Attorney General, moved to dismiss the complaint on the grounds that the trial court lacked subject matter jurisdiction, that the suit was barred by the doctrine of sovereign immunity, and that the suit failed to state a claim for relief. The trial court granted the motion and dismissed the case. Finding no error, we affirm the holding of the trial court. |
Davidson | Court of Appeals | |
Emily Joyce Collins v. William Michael Collins
Parties in divorce proceeding entered into an agreement on the day of trial, memorialized in writing, disposing of the marital assets and debts, adopting a parenting plan, and agreeing “as a division of marital assets” that Wife would “receive the sum of $2,100.00 per month directly from Husband’s military pension.” Husband filed motions both before and after the final decree was entered, seeking to modify the agreement by removing the provision that required him to pay $2,100.00 to Wife on the ground that the $2,100.00 payment exceeded fifty percent of his military retirement and included a monthly payment for service-related disability pay. The trial court denied Husband’s motions and he appeals. Finding no error, we affirm the holding of the trial court. |
Rutherford | Court of Appeals | |
Michael A. Roberts v. Xaviera C. Forrest
This appeal arises from a change in the primary residential parent for two minor children. Mother and Father divorced in Oklahoma. After Mother and the children moved to Tennessee, Father petitioned to modify the joint custody plan adopted in the Oklahoma divorce proceeding. Father alleged a material change in circumstance based upon Mother’s violations of the joint custody plan and Mother’s interference with Father’s relationship with the children. Following a hearing, the trial court found a material change in circumstance and that naming Father the primary residential parent was in the best interest of the children. While not contesting that a material change in circumstance occurred, on appeal, Mother asserts that a change in primary residential parent was not in the children’s best interest. After reviewing the record, we do not find the evidence preponderates against the trial court’s best interest findings. We affirm the judgment of the trial court. |
Montgomery | Court of Appeals | |
Robert Dionne O'Neal v. Mark Goins, et al
Plaintiff, whose rights of citizenship had been restored, brought action against the state coordinator of elections and election commission for declaratory, injunctive, and other relief, asserting that the Defendants had improperly refused to restore his right to vote. On motion of Defendants, the trial court dismissed the complaint with prejudice for lack of subject matter jurisdiction and failure to state a claim for relief; the court also denied plaintiff’s application to amend his complaint to assert a claim for mandamus. Finding no error, we affirm the dismissal of the complaint and denial of the application to amend; we modify the judgment to make the dismissal without prejudice. |
Court of Appeals | ||
MR Hotels, LLC v. LLW Architects, Inc. et al
This interlocutory appeal arises out of the design and construction of a six-story hotel. The owner of the hotel sued LLW Architects, Inc. for breach of contract based on an AIA Standard Form of Agreement Between Owner and Architect. The owner also asserted claims for professional liability against LLW and its principal architect, Dell Livingston, alleging the breach of a duty of care in carrying out their professional services. The trial court summarily dismissed all claims against LLW and Mr. Livingston as time barred by the three-year statute of limitations for damage to real property: Tenn. Code Ann. § 28 3 105. Portions of the hotel first opened for business on May 30, 2007, and the hotel was approved for final use and occupancy on June 26, 2007. Plaintiff commenced this action on October 20, 2010. The owner-architect agreement states that the statutes of limitations for “[c]auses of action between the parties to this Agreement” begin to run on “the date of Substantial Completion.” The accrual provision also states that “[i]n no event shall such statutes of limitations commence to run any later than the date when the Architect’s services are substantially completed.” The agreement defines “Substantial Completion” as “the stage of progress of the Work when the Work or designated portion thereof is sufficiently complete . . . so that the Owner can occupy or utilize the Work for its intended use . . . .” The agreement also defines “date of Substantial Completion” as “the date certified by the Architect . . . .” The trial court held that the accrual provisions applied to the individual architect because Plaintiff’s claims against him were based on duties specified in the architectural agreement. The trial court also determined that June 1, 2007 was the date of Substantial Completion because the hotel was being used for its intended purpose on that date. We respectfully disagree, having determined that LLW and Mr. Livingston were not entitled to summary judgment because they failed to establish the elements of their affirmative defense based on the statute of limitations. Accordingly, we reverse and remand for further proceedings. |
Davidson | Court of Appeals | |
Jason Richard Madden v. Jill Cara Madden
In this divorce action, Father appeals the trial court’s classification of the marital residence as an asset and the division of the marital estate. He also challenges the designation of Mother as the primary residential parent and the residential schedule. For her issue, Mother contends she should be granted exclusive authority to make all major decisions regarding the child due to the parents’ inability to agree upon such matters. We affirm the trial court’s classification and division of the marital estate. We also affirm the designation of Mother as the primary residential parent and the parenting plan with one exception. The parenting plan directs major decisions concerning the child be made jointly by Mother and Father. Because the evidence preponderates in favor of the finding that the parents are unable to agree upon matters concerning the child’s education and non-emergency healthcare, we remand with instructions to modify the parenting plan by awarding Mother sole decision-making authority regarding such matters. See Tenn. Code Ann. § 36-6-407(b) (“The court shall order sole decision-making to one (1) parent when . . . [b]oth parents are opposed to mutual decision making;”). |
Williamson | Court of Appeals | |
State of Tennessee Ex Rel. Kathlene D. Waldo v. Jennifer L. Waldo
In this child support arrearage case Jennifer L. Waldo (“Respondent”) appeals the June 24, 2015 order of the Juvenile Court for Roane County (“the Trial Court”) finding Respondent in civil contempt and sentencing Respondent to incarceration in the Roane County Jail with the incarceration held in abeyance so long as Respondent pays at least $50.00 per month toward child support. We find and hold that no evidence was introduced showing that Respondent had the present ability to pay $50.00, or any amount, and, therefore, the order finding Respondent in contempt and sentencing her to incarceration held in abeyance was in error. We reverse the Trial Court’s June 24, 2015 order, and we dismiss this case. |
Roane | Court of Appeals | |
In Re Joshua C.
The mother of a child born in January 2015 appeals the termination of her parental rights. In March 2015, the two-month-old child was placed in state custody after the Department of Children’s Services received a referral that the child had been exposed to drugs in utero. Thereafter, the juvenile court adjudicated the child dependent and neglected and found that the mother had committed severe child abuse as defined in Tenn. Code Ann. § 37-1-102(b)(21). The mother did not appeal this order. In June 2015, the Department filed a petition for termination of parental rights. After a hearing, the trial court found the evidence clearly and convincingly established that the mother committed severe child abuse and that termination of the mother’s parental rights was in the child’s best interests. We affirm. |
Anderson | Court of Appeals | |
In Re Kendra P. et al.
Mother appeals the termination of her parental rights to her seventeen-year-old daughter. We have concluded that the Department failed to prove by clear and convincing evidence that it is in the child’s best interest to terminate her mother’s parental rights in part because the child is seventeen years old, is not a candidate for adoption, and intends to maintain a relationship with Mother when she turns eighteen. Therefore, we reverse the termination of Mother’s parental rights to her seventeen-year-old daughter. |
Sevier | Court of Appeals | |
In Re Selena L. et al.
This is a termination of parental rights case regarding the parental rights of the mother, Brandy L. (“Mother”) to her minor children, Selena L. and Isabella H., ages five and two respectively when the termination action was filed (collectively, “the Children”). Mother voluntarily placed Selena L. in the custody of a relative in 2009, shortly after the child’s birth. On April 13, 2012, the Hamilton County Juvenile Court (“juvenile court”) placed the Children into the custody of the maternal great-grandmother, Vickie R. (“Petitioner”), upon Petitioner’s filing an action for custody. On August 25, 2014, Petitioner filed petitions in the Bradley County Circuit Court (“trial court”) seeking to terminate the parental rights of Mother and to adopt the Children. Following a bench trial, the court terminated Mother’s parental rights to the Children after determining by clear and convincing evidence that Mother had abandoned the Children by: (1) willfully failing to visit them, (2) willfully failing to financially support them, and (3) exhibiting a wanton disregard toward their welfare. The trial court further found by clear and convincing evidence that terminating Mother’s parental rights was in the best interest of the Children. Mother has appealed. We reverse the trial court’s finding that Mother abandoned the Children by willfully failing to support them during the determinative four-month period. We affirm the trial court’s judgment in all other respects, including the termination of Mother’s parental rights to the Children. |
Bradley | Court of Appeals |
