In re Estate of Terry Paul Davis
Christinia Davis (“Wife”), Terran Denise Davis (“Terran”), and Taylor Ann Davis (“Taylor”) appeal the April 17, 2015 order of the General Sessions Court for Bount County Probate Division (“Probate Court”) upholding the Last Will and Testament of Terry Paul Davis (“the Will”). Wife, Terran, and Taylor raise an issue regarding whether the Probate Court erred in finding that the presumption of undue influence arising out of the proven confidential relationship between Terry Paul Davis (“Deceased”) and Olive K. Davis (“Davis”) was rebutted by clear and convincing evidence. We find and hold that although a confidential relationship was proven between Deceased and Davis, clear and convincing evidence was proven to rebut the presumption of undue influence. We, therefore, affirm. |
Blount | Court of Appeals | |
In re Candace J., et al.
This is a termination of parental rights case. The Tennessee Department of Children’s Services (“DCS”) filed a petition seeking to terminate the mother’s parental rights with respect to the minor child. The juvenile court found that statutory grounds existed to terminate the mother’s parental rights upon its finding by clear and convincing evidence that the mother (1) abandoned the child by her willful failure to visit, (2) abandoned the child by her willful failure to provide a suitable home, (3) failed to substantially comply with the requirements of the permanency plans, and that (4) the conditions that led to the child’s removal still persisted. The juvenile court further found by clear and convincing evidence that termination of the mother’s parental rights was in the child’s best interests. Having thoroughly reviewed the record and considered the arguments presented on appeal, we affirm the juvenile court’s judgment in all respects. |
Rutherford | Court of Appeals | |
James R. Sterchi, Jr. v. Louis B. Savard, Jr., As Executor of The Estate Of L. Basil Savard, Sr.
This appeal concerns a conflict of law choice between Tennessee and Florida law. James R. Sterchi, Jr. (―Mr. Sterchi‖) sued L. Basil Savard (―Mr. Savard‖) in the Circuit Court for Bradley County (―the Trial Court‖) for the wrongful death of Mr. Sterchi’s mother Rosalind Savard (―Mrs. Savard‖) in a car accident in Florida.1 Mr. Savard filed a motion for summary judgment. Florida law prevents Mr. Sterchi from pursuing his claim while Tennessee law does not. All interested parties were domiciled in Tennessee. The Trial Court held that Florida law applies and granted Mr. Savard’s motion for summary judgment. Mr. Sterchi filed an appeal to this Court. We hold that under ―the most significant relationship‖ test as adopted by our Supreme Court in Hataway v. McKinley, 830 S.W.2d 53 (Tenn. 1992), Tennessee has the more significant relationship to the occurrence and parties in this case, and, therefore, Tennessee substantive law applies to Mr. Sterchi’s wrongful death action. We reverse the judgment of the Trial Court. |
Bradley | Court of Appeals | |
James R. Sterchi, Jr. v. Louis B. Savard, Jr., As Executor of The Estate Of L. Basil Savard, Sr.-Concurring
I concur fully in the majority’s decision in this case. I write separately solely to express my opinion that inasmuch as this action was initiated subsequent to July 1, 2011, the standard of review for summary judgment delineated in Tennessee Code Annotated § 20-16-101 (Supp. 2015) applies. See Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 249 (Tenn. 2015) (noting that in contrast to the action in Rye, which was initiated in 2009, Tenn. Code Ann. § 20-16-101 “applies to actions filed on or after July 1, 2011.”) (citing Act of May 20, 2011, ch. 498, 2011 Tenn. Pub. Acts § 3 at 471). The statute provides: |
Bradley | Court of Appeals | |
Melanie Jones, individually and on behalf of Matthew H. v. Shavonna Rachelle Windham, et al.
This Rule 10 appeal stems from a vehicular accident involving a minor child who was struck by a van driven by the employee of a children's daycare. The child's mother filed suit alleging negligence against the employee-driver of the vehicle and asserted claims for negligent hiring, negligent retention, and negligence per se against the driver's employers. The mother also averred that she should recover punitive damages based on the conduct of the Defendants. The employers, the individual owners of the daycare, admitted vicarious liability for the negligence of their employee and moved for partial summary judgment on the direct negligence claims asserted against them. They argued that it was improper to proceed against them on an independent theory of negligence when they had already admitted vicarious liability. The employers, along with the employee-driver, also sought summary judgment with respect to the punitive damages claim. Although the trial court granted the employers' motion with respect to the direct negligence claims, it denied the motion with respect to the claim for punitive damages. On appeal, we reverse the trial court's dismissal of the direct negligence claims asserted against the employers and remand the case for further proceedings consistent with this Opinion. |
Shelby | Court of Appeals | |
Melanie Jones, individually and on behalf of Matthew H. v. Shavonna Rachelle Windham, et al. - Dissent
I must respectfully dissent from the majority's Opinion, and I believe Tennessee should adopt the preemption rule. In my view, once an employer has admitted respondeat superior liability for an employee's negligence, it is improper to allow a plaintiff to proceed against the employer on a negligent hiring or negligent supervision theory of liability. |
Shelby | Court of Appeals | |
In re K.F.R.T. et al.
This is a termination of parental rights case. The case proceeded to trial on the amended petition of the Department of Children's Services seeking to terminate on multiple grounds the parental rights of L.M. to his children, K.F.R.T., L.E.M.R., and B.A.M.R. (collectively the children). The trial court dismissed the petition after a bench trial, finding and holding that DCS “ha[d] failed to prove by clear and convincing evidence any ground sufficient to justify termination of [father's] parental rights.” Whittney N.L. Good, guardian ad litem for the children, appeals. We reverse because we hold that the evidence clearly and convincingly shows that father is guilty of a pattern of criminal conduct “exhibit[ing] a wanton disregard of the child[ren].” Tenn. Code Ann. § 36-1-102(1)(A)(iv) (2014). We find clear and convincing evidence that it is in the best interest of the children to terminate father's parental rights. |
Hamblen | Court of Appeals | |
In re K.F.R.T. et al. - Concurring and Dissenting
D. MICHAEL SWINEY, C.J., concurring and dissenting. I concur in most of the majority’s opinion. I, however, cannot concur with the majority in its decision to reverse the Juvenile Court’s finding as to wanton disregard. I would affirm the Juvenile Court on this issue as well as on all other issues. As such, I also cannot agree with the majority’s decision concerning best interest as that issue never is reached if there is no ground for termination.
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Hamblen | Court of Appeals | |
Bryan McNeese v. Wendolyn Carol Williams, et al.
This appeal involves a Rule 60 motion to set aside an agreed order on the basis that the petitioner withdrew his consent to the agreement prior to the entry of the agreed order. The trial court denied the Rule 60 motion. We reverse and remand for further proceedings. |
Sumner | Court of Appeals | |
In re Landon T.G. et al.
This appeal concerns a mother’s petition to set aside an order terminating her parental rights and permitting the adoption of her minor children. The mother alleged that the order is void for lack of personal jurisdiction because service of process was ineffective. The trial court denied the petition. The mother appeals. We hold that the order is void for lack of personal jurisdiction. We reverse the judgment of the trial court and remand this case for further hearing to determine whether exceptional circumstances justify the denial of relief in accordance with Turner v. Turner, 473 S.W.3d 257 (Tenn. 2015). |
Hamblen | Court of Appeals | |
Kathryn E. Mitchell Et Al. v. Charles Wesley Morris Et Al.
This action concerns the decedent’s purchase of several investment products from the defendants. Following the decedent’s death, his daughter filed suit, alleging violations of the Tennessee Consumer Protection Act, codified at 47-18-101, et. seq., breach of contract, promissory fraud, negligent misrepresentation, and breach of fiduciary duty. The defendants sought summary judgment. The court granted summary judgment, finding that the Tennessee Consumer Protection Act claims were untimely and that the evidence was insufficient to establish the other claims without consideration of parol evidence and inadmissible hearsay testimony. The daughter appeals. We affirm. |
Washington | Court of Appeals | |
John Jason Davis v. Johnstone Group, Inc. v. Appraisal Services Group, Inc.
Appellant appeals the trial cour's grant of Appelle's complaint for declaratory judgment and the trial court's denial of Appellant's counter-complaint for injunctive relief. After Appellee filed notice with Appellant of his intent to leave Appellant's employ and join a competing appraisal firm, Appellant sought to enforce the non-competition provision of the parties' agreement. Appellee then filed for a declaratory judgment that the non-competition provision was unenforceable. The trial court determined that there were no special facts present over and above ordinary competition or any legitimate protectable business interests to warrant enforcement of the non-competition agreement. Appellant appeals. Discerning no error, we affirm and remand. |
Madison | Court of Appeals | |
Kathryn E. Mitchell et al v. Charles Wesley Morris et al. - Concurring
I concur fully in the majority’s decision in this case. I write separately only to express my opinion that the appropriate summary judgment standard to be applied by Tennessee courts now is as set forth in Rye v. Women’s Care Center of Memphis, MPLLC, ___ S.W.3d ___, 2015 WL 6457768 (Tenn. 2015), rather than Tenn. Code Ann. § 20-16-101. I believe our Supreme Court intended for the retroactive application of Rye when it stated: “In civil cases, judicial decisions overruling prior cases generally are applied retrospectively.” Rye, ___ S.W.3d at ___n.9, 2015 WL 6457768 at *35 n.9. While there may be very little, if any, difference between the summary judgment standard as set forth in Rye and as contained in Tenn. Code Ann. § 20-16-101, I believe Rye sets the standard and is controlling on the courts of this State. |
Washington | Court of Appeals | |
David Bryan Hawk v. Crystal Goan Hawk
This post-divorce appeal concerns the mother’s petition to modify the residential schedule in an agreed parenting plan. Following a hearing, the trial court found that a material change in circumstances had occurred that necessitated a change in the plan. The court modified the plan by order and further required the parties to attend parenting classes and mediation before seeking further relief from the court. The mother appeals. We affirm the court’s modification of the plan. We reverse the requirement imposed upon the parties to attend parenting classes before seeking further relief from the court. We remand for entry of a permanent parenting plan and child support worksheet. |
Greene | Court of Appeals | |
Circle C. Construction, LLC v. D. Sean Nilsen, et al. - Concurring in Part and Dissenting in Part
I must respectfully dissent from the majority’s conclusion in this case that the lawsuit refiled by Plaintiff Circle C Construction is timely under the savings statute, Tennessee Code Annotated § 28-1-105(a). |
Davidson | Court of Appeals | |
Brett R. Carter v. Larry B. Martin, et al
Plaintiff filed a public records request for tax study documents. The request was denied, and Plaintiff filed a lawsuit for access to the records. The trial court denied access to the records, and Plaintiff appealed. This Court has determined that the plain language of Tenn. Code Ann. § 67-1-1701(6)’s definition of “tax administration” encompasses the documents in question and that Tenn. Code Ann. § 67-1-1702(a) makes “tax administration information” confidential. The trial court is affirmed. |
Davidson | Court of Appeals | |
John Hamer v. Southeast Resource Group, Inc., et al.
Plaintiff, a member of a Limited Liability Company that sells insurance products to credit union members, filed this declaratory judgment action seeking a determination that the LLC’s operating agreement does not require him to make a “telemedicine counseling” business opportunity available to the LLC. The operating agreement requires members to “disclose and make available to [the LLC] each and every business opportunity that is within the scope and purpose of [the LLC] . . . .” However, “no such disclosure or offer shall be required with respect to business opportunities that are not within the scope and purpose of [the LLC].” The trial court granted Plaintiff summary judgment, finding that the undisputed facts demonstrated that the “scope” of the LLC’s business was selling insurance and that the telemedicine opportunity was not an insurance product. We have determined that the parties intended “scope” to have its ordinary meaning and that the undisputed facts show that the scope of the LLC’s business at the relevant time was the sale of insurance products and the telemedicine counseling business opportunity is not an insurance product. Consequently, we affirm. |
Williamson | Court of Appeals | |
William L. Jenkins v. Tennessee Department of Corrections, et al.
Certiorari proceeding in which an inmate seeks review of a disciplinary proceeding finding him guilty of assault on another inmate. Petitioner asserts that the disciplinary board violated various Tennessee Department of Correction regulations in the conduct of the hearing and that the trial court erred in dismissing the petition. Finding no error, we affirm the decision of the trial court. |
Wayne | Court of Appeals | |
Shemeka Ibrahim v. Mark Williams, et al.
Plaintiff filed a health care liability action against multiple healthcare providers but did not comply with the statutes governing healthcare liability actions. Defendants filed motions to dismiss and for summary judgment. The trial court granted the motions. Plaintiff appeals, and finding no error, we affirm. |
Davidson | Court of Appeals | |
Richard W. Gibbs, et al v. Clint Gilleland, et al.
Buyers of unimproved real property seek rescission of a Lot/Land Purchase and Sale Agreement on the ground of mutual mistake. Buyers purchased the property for the purpose of constructing a house. It is undisputed that at the time of contracting, Buyers and Sellers believed the property was suitable for that purpose. One week after obtaining the necessary building permits and commencement of construction, Buyers were informed by the county that the property was substantially below the required Base Flood Elevation (“BFE”) and that construction must cease immediately. Buyers halted construction and hired a professional engineer to address the issue. Based on unique drainage and flooding concerns, the engineer concluded that the property was not suitable for construction of a residential building and it had not been suitable for such purpose since the land was subdivided in 1999. After Buyers sued for rescission of the contract, both parties filed motions for summary judgment. The trial court found that when the contract was entered into the property was suitable for construction of a house and it only became unsuitable due to the subsequent action of the county in setting the BFE. Therefore, the court concluded there was no mutual mistake of fact. Based on this finding the court granted Sellers’s motion for summary judgment and summarily dismissed the complaint. Buyers appeal. We conclude that, at the time of contracting, the parties were operating under a mutual mistake as to a contemporaneously verifiable fact; nevertheless, the contract assigned the risk of mistake to Buyers. Therefore, rescission on the ground of mutual mistake is not available. Accordingly, we affirm. |
Rutherford | Court of Appeals | |
Justin R. Rogers v. Blount Memorial Hospital, Inc. et al. - Concurring
I concur fully in the majority’s decision in this case. I write separately only to express my opinion that the appropriate summary judgment standard to be applied by Tennessee courts now is as set forth in Rye v. Women’s Care Center of Memphis, MPLLC, ___ S.W.3d ___, 2015 WL 6457768 (Tenn. 2015), rather than Tenn. Code Ann. § 20-16-101. I believe our Supreme Court intended for the retroactive application of Rye when it stated: “In civil cases, judicial decisions overruling prior cases generally are applied retrospectively.” Rye, ___ S.W.3d at ___n.9, 2015 WL 6457768 at *35 n.9. While there may be very little, if any, difference between the summary judgment standard as set forth in Rye and as contained in Tenn. Code Ann. § 20-16-101, I believe Rye sets the standard and is controlling on the courts of this State. |
Blount | Court of Appeals | |
Cathy Turnbo Franks v. Ronald Franks
This is the second appeal of this case involving various financial issues relative to a divorce. Husband appeals the trial court‘s determination of several factual findings relative to alimony, including Wife‘s ability to secure employment, Husband‘s ability to earn in the future, the award of attorney‘s fees to wife, and the value of several marital assets divided in the property division, including the value of an LLC jointly owned by the parties. We now vacate the order of the trial court and remand for further proceedings. |
Hardin | Court of Appeals | |
Justin R. Rogers v. Blount Memorial Hospital, Inc. et al.
This appeal involves a health care liability action filed by the plaintiff against Blount Memorial Hospital, Inc. (“BMHI”) and the doctor who treated the plaintiff at BMHI from September 8, 2012, to September 13, 2012. The plaintiff filed his complaint on December 13, 2013, alleging that the defendant doctor had misdiagnosed his illness, causing a delay in treatment and resultant permanent injuries. Both defendants filed motions to dismiss, which were converted into motions for summary judgment with the filing of additional affidavits. The trial court granted summary judgment in favor of BMHI based on, inter alia, the applicable statute of limitations and BMHI's immunity as a governmental entity. |
Blount | Court of Appeals | |
James Burton v. Faye Barna
Due to the inadequacies of appellant’s brief and appellant’s failure to provide a transcript or statement of the evidence, we conclude that he has waived consideration of this appeal, and we affirm the judgment of the chancery court. |
Fentress | Court of Appeals | |
S. Carmack Garvin, Jr., et al v. Joy Malone
Plaintiffs and Defendant were involved in a motor vehicle accident. Plaintiffs allege Defendant was negligent in causing her van to run into the rear of their car and that as a result of Defendant’s negligence, Plaintiffs suffered damages. During trial, Defendant introduced photographs of the vehicles taken immediately after the collision, which the trial court permitted, over Plaintiffs’ objection, for the purpose of impeaching Plaintiffs’ testimony. The evidence was heard by a jury, which determined Defendant was not at fault. Plaintiffs filed a motion for a new trial, which the trial court denied. On appeal, Plaintiffs argue the trial court erred by allowing the jury to consider Defendant’s photographic evidence for purposes of impeachment. We conclude the trial court did not err and affirm its judgment. |
Williamson | Court of Appeals |
