William L. Downing v. Sherrie J. Downing
The trial court granted the wife a divorce on the ground of inappropriate marital conduct, and divided the marital property, awarding the marital home to the wife and a nearby piece of unencumbered business property to the husband. The court also made the husband responsible for 60% of the mortgage obligation on the marital home and allowed the wife to retain her entire 401(k) retirement account. The husband contends on appeal that the division of property and debt was inequitable and that the trial court impermissibly awarded the wife her 401(k) account in the form of alimony in solido. We affirm the division of marital property and marital debt. We also find that there was no alimony award, because the final order in this case, signed by the judge, treats the 401(k) as part of the division of marital property rather than as alimony. However, it appears to us that the trial court made some calculating errors when it ordered the husband to pay specific monthly amounts on the home mortgage. We therefore vacate that portion of the court’s order and remand this case to the trial court so that it may correct those calculations. |
Sumner | Court of Appeals | |
William Brian Taylor v. The Del-Nat Tire Corporation
Plaintiff sued his former employer, claiming that he was entitled to unpaid overtime pay and reimbursement for the cost of educational courses he took while employed by the employer. Following a bench trial, the trial court awarded the plaintiff overtime pay, reimbursement for the courses, and attorney’s fees. We reverse the decision of the circuit court and vacate the award. |
Shelby | Court of Appeals | |
Kirkland Sturgis v. Donna Smith Thompson
This is an appeal from the circuit court’s dismissal of an appeal from the general sessions court. The appellee purchased property during a foreclosure sale. The appellee purchaser filed an action in general sessions court to gain possession of the property from the defendant/appellant and recover rent. After an adverse judgment in the general sessions court, the defendant/appellant appealed to the circuit court. The circuit court found that the defendant/appellant failed to perfect her appeal because she did not file a cost bond or make bond for one year’s rent and costs. Consequently, the circuit court dismissed the appeal from general sessions court. The defendant/appellant appeals to this Court. We affirm based on failure to file a cost bond. |
Crockett | Court of Appeals | |
Mountain Valley Properties, Inc. v. The River Preserve Owners’ Association, Inc., et al.
Mountain Valley Properties, Inc. (“Plaintiff”) sued The River Preserve Owners’ Association, Inc., Richard J. Prichard, Pamela L. Prichard, Joseph E. Scott, and Paula A. Scott (“Defendants”) with regard to disputes concerning a tract of land owned by Plaintiff located in a residential development situated on Chickamauga Lake in Hamilton County, Tennessee. Both Plaintiff and Defendants filed motions for summary judgment. After a hearing, the Trial Court entered its order denying Plaintiff’s motion for summary judgment and granting Defendants’ motions for summary judgment after finding and holding, inter alia, that Plaintiff does not have standing to contest the building of a community parking area on land not owned by Plaintiff; that Plaintiff does not have the right to close off an existing drive to other land owners in the community; and that Plaintiff should not be allowed to produce additional evidence after the hearing on the motions for summary judgment. Plaintiff appeals to this Court. We affirm. |
Hamilton | Court of Appeals | |
Charles Isham v. James C. Marshall, et al.
The landlord and owner of a house filed a detainer warrant in general sessions court to regain possession of his house after notifying the tenants they should look for another place to live. In the warrant the landlord asked for possession, rents due, and reimbursement for any damages to the property. The general sessions court awarded the landlord possession only. The tenants filed a petition for writ of certiorari and supersedeas with the circuit court, claiming they had not received sufficient notice as required by statute and should therefore be permitted to remain in the house. The circuit court held a trial de novo on the issue of notice and granted the landlord a directed verdict on this issue. The tenants filed three motions asking the circuit court judge to recuse himself, and the judge denied them. The tenants appealed the court’s award of possession to the landlord and the trial judge’s refusal to recuse himself. Following the tenants’ appeal, the landlord filed a post-trial motion seeking an award of back rent and reimbursement for damages the tenants had caused the house to suffer. Following a hearing, the trial court awarded the landlord $14,865 in back rent and damages. The tenants filed a second Notice of Appeal and argued their first Notice of Appeal divested the trial court of jurisdiction to hear the landlord’s post-trial motion. We affirm the trial court in all respects. We first determine we do not have jurisdiction to rule on the issue of notice because the tenants have vacated the house and do not wish to return, rendering that issue moot. The trial judge did not abuse its discretion in refusing to recuse himself because the tenants’ motions seeking his recusal were primarily based on the court’s adverse rulings against them. Finally, we determine the trial court retained jurisdiction to hear the landlord’s post-trial motions for back rent and damages because these issues were properly before the trial court and were unadjudicated issues when the tenants filed their first Notice of Appeal. |
Sumner | Court of Appeals | |
First Community Financial Services v. Ronald Simmons and Sunny Simmons
The plaintiff financial services company filed actions in the General Sessions Court against defendants alleging they had defaulted on promissory notes. The court entered judgments for the plaintiff on both notes, including attorney fees. After making installment payments on the judgments for well over a year, the defendants filed a Rule 60 motion in the same court to set the judgments aside, accompanied by affidavits alleging that their signatures on the notes were forgeries. The court overruled the motion because it was filed more than ten days after the challenged judgments were entered and thus was not timely in accordance with Tenn. Code Ann. § 16-15-727(b). The defendants then appealed to the Circuit Court, which dismissed the appeal on the ground of lack of jurisdiction because of the untimeliness of the defendants’ filing in the court below. We affirm the Circuit Court. |
Franklin | Court of Appeals | |
Joshua Cordell Payne v. Kyndra Loran Payne
Father appeals the trial court’s order granting Mother’s petition that she be named the primary residential parent of their one child. Father was named the primary residential parent when the parties were divorced, and Mother was granted liberal parenting time with the child. Father filed three separate petitions during the following three years seeking to modify and limit Mother’s time with the child. However, Father was unable to prove any of his allegations against Mother, leading the court to deny each of his petitions. In response to his final petition to modify, Mother filed a counter petition asking to be named the primary residential parent. The trial court granted Mother’s petition, finding that Father’s petitions seeking to limit Mother’s time with the child and his failure to investigate the allegations in his petitions intentionally interfered in the child’s relationship with her mother, constituting a material change in circumstances unanticipated at the time the permanent parenting plan was established. Father contends the trial court was precluded by res judicata and collateral estoppel from finding his earlier petitions were frivolous and filed without adequate investigation, and that the court erred in relying on these findings to change the primary residential parent from Father to Mother. We affirm the trial court’s judgment and grant Mother her attorney’s fees incurred at trial and this appeal. We remand this case to the trial court to determine Mother’s reasonable attorney’s fees. |
Fentress | Court of Appeals | |
Richard A. Demonbreun v. Metropolitan Board of Zoning Appeals
The Metropolitan Nashville Board of Zoning Appeals refused to grant a special exception permit to allow a Nashville businessman to operate a Historic Home Events business in a residential neighborhood. The Board stated that its decision was based on the businessman’s history of non-compliance with the conditions it had imposed on earlier permit grants and renewals. The businessman filed a petition for writ of certiorari in the Circuit Court of Davidson County. After a hearing, the court found that four of the BZA members had acted out of ulterior motives, i.e.,their displeasure and frustration with the applicant, and it granted the requested permit, subject to a number of restrictions. We hold that the BZA may take into consideration prior activity at the location in the context of the impact of those activities on the public health, safety, and welfare. Because herein the BZA did not relate any specific prior conduct to a public harm and because most of the activities discussed at the hearing had occurred prior to previous permit grants and renewals, we conclude that the denial was arbitrary. Accordingly, we affirm the trial court. |
Davidson | Court of Appeals | |
Terry Lake and Linda Ousley v. Louis Haynes, Barbara Haynes and Running Bear Construction
This is a construction case. The plaintiffs hired the defendant construction company to build two residential houses. Disputes arose during construction over completion of the work and the plaintiffs did not make some payments to the construction company. After the plaintiffs terminated the contract, they sued the defendant construction company. The construction company filed a counter-complaint. After a trial, the trial court dismissed the plaintiffs’ complaint and the defendants’ counter-complaint. However, the trial court failed to issue written findings of fact and conclusions of law as required under Rule 52.01 of the Tennessee Rules of Civil Procedure. We vacate the trial court’s judgment and remand the cause to the trial court for written findings of fact and conclusions of law. |
Shelby | Court of Appeals | |
William May v. Illinois Central Railroad Company
This appeal involves a claim under the Federal Employers’ Liability Act. The plaintiff employee filed this lawsuit against the defendant railroad alleging injuries caused by his employment. The railroad company filed a motion for summary judgment, asserting that the employee’s claims are time-barred. The railroad argued that, under the discovery rule, the facts showed that the employee knew or should have known that his injuries were work-related more than three years before the lawsuit was filed. The trial court denied the motion for summary judgment. The railroad was granted permission for this interlocutory appeal. We affirm. |
Shelby | Court of Appeals | |
Ready Mix, USA, LLC., v. Jefferson County, Tennessee
Defendant issued a stop work order against plaintiff to cease mining activities on plaintiff's property. Plaintiff brought suit in Chancery Court seeking a declaratory judgment on the issue. A bench trial was held and the Trial Court adopted the doctrine of diminishing assets and that Ready Mix had established a pre-existing and non-conforming use on its property pursuant to Tenn. Code Ann. § 13-7-208 (b)(1). Defendant has appealed and we hold on this record that plaintiff was required to exhaust its administrative remedies prior to filing an action in Chancery Court. |
Jefferson | Court of Appeals | |
Ready Mix, USA, LLC., v. Jefferson County, Tennessee - Dissenting
I cannot concur in the majority’s decision – as stated by it – “that Ready Mix was required to exhaust the administrative remedies provided by statute and the ordinance by appealing the zoning official’s stop work order to the Board of Zoning Appeals.” The majority relies heavily upon our decision in State ex rel. Moore & Associates v. West, 246 S.W.3d 569 (Tenn. Ct. App. 2005). In Moore, the plaintiff alleged that the zoning administrator failed or refused to issue a certificate of compliance even though the developer had installed a Category B landscape buffer that complied with the requirements of the Metro ordinance, giving specifics as to the materials installed, their spacing, and the dimensions and nature of the buffer. Id. at 576-77. The Moore plaintiff asked the court to declare that the buffer it had established in connection with its newly-constructed hotel “complied with the [buffer] requirements of the . . . Code [of the Metropolitan Government of Nashville and Davidson County].” Id. at 577. |
Jefferson | Court of Appeals | |
Clint Black et al. v. Charles Sussman et al.
Entertainer filed this suit against his former business manager, who is an accountant, and against several business entities for breach of fiduciary duty, accounting malpractice, breach of contract, misrepresentation, and violation of the Tennessee Consumer Protection Act. The trial court granted summary judgment for the business manager and another defendant on the ground that the gravamen of the complaint was accounting malpractice and that all of the claims were barred by the applicable one-year statute of limitations. As to a second group of defendants, the trial court granted summary judgment based upon the absence of an actual partnership and the absence of proof that the entertainer relied on any representations of partnership. We have concluded that the trial court erred in granting summary judgment to the first group of defendants because the complaint states causes of action for breach of a business manager’s fiduciary duties as well as causes of action for accounting malpractice, and these two types of causes of action are subject to different statutes of limitations. As to the second group of defendants, we have concluded that summary judgment was not appropriate because material issues of fact remain as to the entertainer’s reliance on representations of partnership. |
Davidson | Court of Appeals | |
Elliot H. Himmelfarb, M.D. et al. v. Tracy R. Allain
Two physicians filed this malicious prosecution action against a former patient after she voluntarily dismissed, without prejudice, a medical malpractice action she filed against them. The defendant, the former patient, moved for summary judgment asserting that the plaintiffs could not prove the essential elements of a malicious prosecution claim: that the medical malpractice suit was brought without probable cause, that it was brought with malice, and that it was terminated in the physicians’ favor. The trial court denied the motion. We have determined that the issue of favorable termination in this case involves questions of fact and law, and that fact questions concerning the circumstances surrounding the voluntary dismissal without prejudice of the medical malpractice action are in dispute. We have also determined that there are genuine issues of material fact concerning the other essential elements. Therefore, the defendant’s motion for summary judgment was properly denied. |
Williamson | Court of Appeals | |
Ricky Lynn Hill v. State of Tennessee
The trial court dismissed this action, inter alia, for lack of subject matter jurisdiction. We dismiss this appeal for Appellant's failure to timely file the notice of appeal. |
Chester | Court of Appeals | |
In Re Iyana R.W.
The primary residential parent of the parties’ ten-year-old daughter requested permission to relocate to Colorado. The mother’s reason for the relocation was that she had married a man who was a military service member stationed in Colorado. The father opposed the move. The trial court denied the request after finding that the mother’s conduct surrounding the move constituted a material change in circumstances and that it was in the child’s best interest that the father become the primary residential parent. The mother appeals. At the time of the request to relocate, Mother was the primary residential parent and spent substantially more time with the child; thus, Tenn. Code Ann. § 36-6-108(d) applied. Finding that the trial court erred in failing to apply Tenn. Code Ann. § 36-6-108(d), we reverse the trial court’s judgment; grant Mother’s request to relocate to Colorado with the parties’ minor child; deny Father’s petition to change custody; and remand for the trial court to set Father’s visitation. |
Bradley | Court of Appeals | |
Jenny A. Pennington v. Christopher J. Hennessee
Mother filed a petition in 2010 to modify child support set in a 2005 order and parenting plan on the basis of a substantial and material change of circumstances. The trial court dismissed the petition, holding that there was not a significant variance in the parties’ presumptive child support obligations in 2005 and 2010. Mother appeals, contending that the 2005 order and parenting plan are void because they relieved Father of his obligation to pay child support. Finding that the 2005 order fails to comply with Tenn. Code Ann. § 36-5-1-1(e)(1)(A) and Tenn. Comp. R. & Regs. Ch. 1240–2–4–.02(7), we reverse the judgment and remand the case for further proceedings. |
Warren | Court of Appeals | |
McCall Brister v. HCA Health Services of Tennessee, et al.
This is an appeal from the trial court’s grant of a hospital’s motion to dismiss for failure to state a claim upon which relief can be granted. The trial court determined that plaintiff’s claim sounded in medical malpractice and dismissed plaintiff’s claim for failure to comply with the written notice and certificate of good faith requirements of the Tennessee Medical Malpractice Act. Finding that Plaintiff’s complaint states claim for ordinary negligence and premises liability, we reverse the trial court and remand the case for further proceedings. |
Davidson | Court of Appeals | |
Andre Wilks v. Maxine Wilks
This is an appeal of a divorce matter. We dismiss this appeal for Appellant's failure to appeal a final judgment. |
Shelby | Court of Appeals | |
In Re: Aiden R. B., et al.
Amy B. (“Mother”) is the biological mother of the minor children, Aiden R. B. and Evan M. B. (“the Children”). The State of Tennessee Department of Children’s Services (“DCS”) filed a petition to terminate Mother’s parental rights to the Children. Following a trial, the Juvenile Court for Sevier County (“the Trial Court”) found and held, inter alia, that clear and convincing evidence existed to terminate Mother’s parental rights to the Children on four grounds under Tenn. Code Ann. § 36-1-113(g)(1), (2), and (3) and that termination was in the Children’s best interest. Mother appeals the termination of her parental rights. We affirm. |
Sevier | Court of Appeals | |
O’Rane M. Cornish, Sr. v. The Home Depot, Inc.
The trial court awarded summary judgment to Defendant in this malicious prosecution action. We affirm. |
Shelby | Court of Appeals | |
In Re: Jaiden C.W. and Caiden J.W., Children Under the Age of 18 Years (d.o.b. 7/27/2006)
This is a child support case. The juvenile court found, inter alia, the father owed a child support arrearage of $21,356.63. We affirm in part, vacate in part, and remand. |
Coffee | Court of Appeals | |
Brande Kirk, et al. v. Michael A. Chavin, M.D.
Brande Kirk and Amanda Jordan, as children of Barbara Jordan, (“Plaintiffs”) sued Michael A. Chavin, M.D. alleging medical malpractice in his treatment of Barbara Jordan. Dr. Chavin filed a motion for summary judgment. After a hearing, the Trial Court entered its order on August 30, 2010 finding and holding that Plaintiffs’ expert was not qualified to testify in accordance with Tenn. Code Ann. § 29-26-115, and granting Defendant’s motion for summary judgment. Plaintiffs appeal to this Court. We affirm. |
Hamblen | Court of Appeals | |
In the Matter of: the Conservatorship of: Mary Louise Sottong, Appellee, Geoffrey Sottong, Appellant
In this conservatorship estate, Geoffrey Sottong, son of Mary Louise Sottong, raises issues as to the ruling of the Trial Court regarding the conservator's administration of the conservatorship estate. Upon review, we conclude that the Trial Court's series of orders properly instructed the conservator on administering the estate, and affirm the Judgment of the Trial Court on these issues. |
Hamilton | Court of Appeals | |
Leslie Newman, Commissioner of the Tennessee Department of Commerce and Insurance v. Smart Data Solutions, LLC, et al.
This is an appeal of the grant of an application by the Commissioner of Insurance for the State of Tennessee to place an allegedly illegal insurance enterprise into receivership for purposes of liquidation pursuant to the Insurers Rehabilitation and Liquidation Act, Tenn. Code Ann. § 56-9-101, et. seq. Respondents contend they are not insurers subject to the Rehabilitation and Liquidation Act and that, because the court found that the insurance was nonexistent, the appointment of a receiver of the businesses was not authorized. Finding that the activities of the various respondents constitute “insurance business” as defined by the applicable statute and that placing the businesses into receivership was proper, we affirm the order of the trial court. |
Davidson | Court of Appeals |
