Barry D. Smith v. Tamara Y. Smith
This appeal involves a dispute regarding the residential schedule for a twelve-year-old child. In the divorce proceeding filed in the Chancery Court for Sumner County, the trial court, at the parties’ request, appointed a psychologist to examine the parties and their child and to report his findings and conclusions to the court and the parties. After the psychologist completed and filed his reports, the trial court and the parties used them to fashion interim visitation orders. Despite the earlier use of the reports, the mother objected to the use of the reports at trial on the ground that she had not been afforded an opportunity to depose the psychologist. The trial court overruled the objection. After receiving the testimony of the parties and their child, the court designated the father as the primary residential parent and fashioned a residential schedule accordingly. On this appeal, the mother asserts that the trial court erred by (1) admitting and considering the psychologist’s report, (2) designating the father as the primary residential parent, and (3) declining to award her attorney’s fees. We have determined that the wife waived her opportunity to object to the introduction of the psychologist’s reports. We have also determined that the evidence presented at the trial is, by itself, sufficient to support the trial court’s designation of the father as the primary residential parent and that the trial court did not err by denying the mother’s request for attorney’s fees. |
Sumner | Court of Appeals | |
Kala Dean And Lexie M. Dean v. Weakley County Board of Education
This is a negligence case. The plaintiff, a female high school student, was being verbally harassed by a male student. The plaintiff complained repeatedly to a school administrator, who assured her that he would take care of the situation. The male student’s taunts did not stop and he threatened to beat up the plaintiff. The school administrator was told about the threat and took no action. Subsequently, in the school hallway, a confrontation between the male student and the female plaintiff resulted in the male student punching the plaintiff in the face and causing serious injuries. A lawsuit was filed on behalf of the female student against the high school board of education. The trial court denied the school board’s motion for summary judgment, and the case was tried. The trial court found for the plaintiff, awarding damages and medical expenses. The school board argued that the award should be reduced under comparative fault principles, but the trial court declined to do so because it found that the male student was the instigator. The school board appeals, arguing, inter alia, that the trial court erred by denying its motion for summary judgment, by not holding that the school board was immune under the public duty doctrine, by allocating no fault to the plaintiff, by not appropriately weighing judicial admissions of fault by the plaintiff, and by applying the clear and convincing evidence standard to determine whether the school board had established comparative fault. We affirm, finding that the denial of the summary judgment motion is not appealable after a trial on the merits, that the public duty doctrine is not applicable, that the trial court found that the male student was the instigator under the preponderance of the evidence standard, and that the preponderance of the evidence supports the trial court’s decision, even considering the plaintiff’s judicial admissions. |
Weakley | Court of Appeals | |
In the Matter of M. L. P. - Dissenting
I must respectfully dissent from the majority opinion in this case, on the grounds that the proof does not support a finding of willful abandonment by the Father.1 Specifically, there is no evidence that the Father was aware of his duty to visit, a necessary element of willfulness. |
Shelby | Court of Appeals | |
In the Matter of M. L. P.
This appeal involves a petition to terminate a father’s parental rights that was filed by the child’s great aunt, great uncle, and another couple who would like to adopt the child. The juvenile court dismissed the petition upon finding that the father did not willfully abandon the child. The court |
Shelby | Court of Appeals | |
Tennessee Farmers Mutual Insurance Company, v. Kent Cherry,et al.
In this appeal we must determine whether an injured party was a “farm employee” within the meaning of a farm owner’s liability insurance policy. The alleged employee is the farm owner’s father. He was grinding corn to feed the farm owner’s cattle when he was injured. The father and his wife filed suit against the son and his wife seeking to recover damages as a result of the accident. The son’s farm owner’s liability policy provided coverage for occurrences to “farm employees” in certain instances. The insurer filed this declaratory judgment action seeking a declaration that it had no duty to defend or indemnify the insureds because the father was not a farm employee. The trial court held that the father was a farm employee and ordered the insurer to defend and indemnify the insureds in the underlying lawsuit. We affirm. |
Lauderdale | Court of Appeals | |
Mark A. Skidmore v. Darlean McDougal, et al.
The November 7, 2006 Hendersonville election for alderman in Ward 3 is the subject of this litigation. The margin of victory was a mere 18 votes. The losing candidate, Mr. Skidmore, challenged the election results. The chancellor held against him. Mr. Skidmore appeals, maintaining that a sufficient number of illegal votes were cast to require that the election be voided. We affirm the chancellor. |
Sumner | Court of Appeals | |
Rex Brown v. United Parcel Service, Inc. And Liberty Mutual Insurance Company
This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The Appellant suffered a stroke while performing his job as a package car driver for his Employer. The stroke occurred while he was being trained to take over a new delivery route. The Employee sought workers’ compensation benefits, alleging that the stroke was precipitated by stress associated with his job, particularly with the adjustment to the new route. In preparation for trial, the Employer took discovery depositions of two medical experts identified as potential witnesses by its Employee. The Employee did not take evidentiary depositions of those witnesses, but sought to introduce their discovery depositions as evidence at trial. The trial court admitted the depositions into evidence over the objection of the Employer. The trial court found that the Employee’s stroke was the result of an occupational disease, precipitated by work-related stress, and awarded permanent total disability benefits. The Employer has appealed, contending that the trial court erred by admitting the discovery depositions into evidence, and finding that the Employee’s stroke was a compensable event. We find that the depositions should not have been admitted into evidence, in accordance with Rule 32.01(3) of the Tennessee Rules of Civil Procedure. After a review of the record without consideration of the depositions, we reverse the judgment of the trial court awarding permanent disability benefits for the stroke and dismiss the portion of the complaint relating to the stroke. The award for an injury to the Employee’s shoulder is not questioned and that portion of the judgment is affirmed. |
Maury | Court of Appeals | |
Larry Thornton vs. Joe Marcum and wife, Mona Marcum
Plaintiff and defendants entered into a verbal agreement wherein plaintiff would purchase two lots from the defendants at an agreed price. Plaintiff made payments as agreed over a period of time, but before the lots were completely paid for defendants sold one of the lots to a third party. Plaintiff brought this action for specific performance and the Trial Court ruled that the verbal agreement violated the Statute of Frauds. However, the Trial Court invoked the theory of equitable estoppel against defendants, ordered specific performance, and awarded damages for the lot sold, which was part of the purchase agreement. On appeal, we affirm. |
Campbell | Court of Appeals | |
Nancy J. Strong v. John H. Baker, III, Esq., et al.
In this legal malpractice action, the trial court denied the former client’s motion to stay proceedings and granted summary judgment in favor of the attorney. The former client asserts on appeal that summary judgment was not proper because the underlying case in which the malpractice allegedly occurred is still pending, and therefore, damages cannot be established. We affirm the decision of the trial court. |
Lincoln | Court of Appeals | |
Mike Parsons, et al. v. James Wells, et al.
Following a hearing, the trial court granted Defendants’ motion for summary judgment where Plaintiffs failed to respond to Defendants’ motion prior to the hearing. Plaintiffs filed a motion to alter or amend, asserting that they had received notice of the hearing but did not receive a copy of Defendants’ motion itself. The trial court found the motion had been mailed with the notice of hearing, and that Plaintiffs failed to respond timely. Plaintiffs appeal; we affirm. |
Tipton | Court of Appeals | |
James C. Gekas, M.D. v. Seton Corporation, d/b/a Baptist Hospital
The plaintiff physician sued the defendant hospital for breach of contract after the hospital declined to promote him to a permanent position on its medical staff. He claimed that the hospital’s bylaws were part of his employment contract, and that the manner in which the hospital reached its decision violated those bylaws. The trial court granted summary judgment to the hospital. We agree that the bylaws formed part of his contract, but since the record clearly shows that the hospital substantially complied with its bylaws we affirm the trial court. |
Davidson | Court of Appeals | |
BMC Enterprises, Inc. D/B/A Bond Memorial Chapel v. City of Mt. Juliet, et al.
Plaintiff has operated a funeral home on its property since 1997. In this zoning dispute, the City of Mt. Juliet Board of Zoning Appeals (“the Board”) refused to allow plaintiff to establish a crematory as an expansion of plaintiff’s funeral home services. The funeral home had been a legal nonconforming use of plaintiff’s property since the City’s zoning ordinance was amended in 1998. The Board refused to allow plaintiff to operate a crematory on the same property because crematories are not permitted in the zoning district for plaintiff’s property. Plaintiff filed a Petition for Writ of Certiorari to the Trial Court for judicial review of the Board’s decision. The Trial Court granted the writ and found that the Board’s decision was arbitrary, illegal, and capricious. The Trial Court reversed the Board’s decision and ordered defendants to allow plaintiff to build and operate the proposed crematory on its funeral home property. The Trial Court also granted plaintiff $10,000 in attorney fees and costs. Defendants appeal. We affirm. We also hold that BMC is entitled to its reasonable attorney fees and costs incurred during this appeal, not to exceed $10,000, pursuant to the Equal Access to Justice Act, Tenn. Code Ann. § 29-37-101, et seq. Therefore, we remand to the Trial Court for a determination of the proper amount of attorney fees and costs to be awarded to BMC and for collection of costs below. |
Wilson | Court of Appeals | |
State of Tennessee ex rel, Peggy Doreen (Hunn) Flatt v. Jerry Keith Flatt
This appeal involves a child support obligation. The mother and father had three minor children. When the parties divorced, they entered into a marital dissolution agreement and a permanent parenting plan, which were approved by the divorce decree. Relevant to this appeal, the parties owned a newer residence, which was their marital home, and also an older residence, which had been listed for sale. The permanent parenting plan provided that it would not become effective until the older residence was sold. The parties agreed that the mother and the three children would be allowed to continue living with the father in the newer residence after the divorce until the older residence was sold. The father would be paying several marital debts until the older home sold, including the mortgage on the older home. However, the parenting plan provided that the father’s obligation to pay child support would not begin until the older home was sold. The mother and children soon moved out of the marital home and into the older residence. Pursuant to the agreement, the father had no obligation to pay child support because the older residence had not been sold. Six weeks after the final divorce decree was entered, the mother filed a motion to set aside the divorce decree and parenting plan, claiming that the parties were not abiding by the decree and the father was not paying any child support. The mother began receiving public assistance benefits, and the State of Tennessee Department of Human Services filed a petition on her behalf seeking to modify the father’s child support obligation, claiming that the agreement relieving him of his duty to pay child support was void and that a significant variance existed between his current obligation and the Child Support Guidelines. The trial court entered a default order requiring the father to pay child support directly to the mother, but later set it aside, leaving the father with only his obligation, pursuant to the marital dissolution agreement, to pay the marital debts until the older residence sold. The State appeals. We reverse and remand. |
McNairy | Court of Appeals | |
In Re: Adoption of S. A. W.
The biological father of S.A.W. appeals the termination of his parental rights. He maintains that he had no notice of the final hearing. The notice of the hearing was sent in accordance with Tenn. R. Civ. P. 5.02 to the address supplied by the biological father. Proof of due mailing creates a presumption of receipt and nothing in the record rebuts this presumption. We affirm. |
Stewart | Court of Appeals | |
In Re: Adoption of F. M. B. P. W.
The biological father of F.M.B.P.W. appeals the termination of his parental rights. He maintains that he should have been personally served rather than served by publication and that he had no notice of the final hearing. Because we have determined that the statutory requirements of service by publication were not met, we vacate the order and remand the case to the trial court. |
Stewart | Court of Appeals | |
Mary Anne Marciante v. William Harold Perry
This appeal involves the classification and division of marital property after a marriage of approximately thirteen years. We have determined that the trial court erred in its classification of various assets and debts, and the resulting distribution of the marital estate was inequitable. Therefore, we modify the judgment and affirm as modified. |
Williamson | Court of Appeals | |
Robert J. Young Company v. Nashville Hockey Club Limited Partnership
This case arises from a contract dispute between the parties. The Appellant herein, Nashville Hockey Club, entered into a “Sponsorship Agreement” with the Appellee herein, Robert J. Young Company. Subsequently, the parties agreed to change their agreement. As a result, the parties entered into a subsequent “Letter of Agreement.” When a players’ strike occurred, Appellee wished to cancel the contract. Appellant claimed that the “Sponsorship Agreement,” and particularly the force majeure clause contained therein, were not superseded by the “Letter of Agreement.” The trial court granted summary judgment against Appellee and, following a hearing on Appellant’s counterclaim, granted judgment in favor of Appellant but did not award damages based upon its finding that Appellant had mitigated all of its damages. Appellant appeals on the issue of damages. Appellee appeals on the issue of what, if any, agreement exists between the parties. Finding that the plain language of the “Letter of Agreement” supports a finding that same supersedes the “Sponsorship Agreement,” we reverse and remand. |
Davidson | Court of Appeals | |
Doyle H. Brandt et al. v. David H. McCord, M.D. et al.
The issue on appeal in this medical malpractice action is whether the plaintiffs’ lawsuit was timely filed. The plaintiffs, husband and wife, filed this medical malpractice action on December 5, 2003, against three healthcare providers for a surgical procedure performed on husband on December 8, 2000. All defendants filed a Motion to Dismiss and/or for Summary Judgment based on the statute of limitations. The trial court summarily dismissed the complaint finding the plaintiffs had knowledge of enough facts more than one year before filing the lawsuit to put a reasonable person on notice that an injury had been suffered as a result of wrongful conduct by the defendants. The trial court also found that the doctrine of fraudulent concealment did not apply to toll the statute of limitations. The plaintiffs appealed. Finding no error, we affirm. |
Davidson | Court of Appeals | |
James W. Burd, et al. v. Daeshawn Traughber a/k/a Daeshawn Souza, et al.
Defendants appeal the trial court’s failure to set aside, under Tenn. R. Civ. P. 60.02, the grant of summary judgment in this intentional tort case. Finding that the trial court did not abuse its discretion, we affirm. |
Sumner | Court of Appeals | |
Nina Louise James Bumpus v. Scott Michael Bumpus
This appeal involves a change in child custody and a petition for contempt. When the parties divorced, they agreed upon a parenting plan providing that Mother would have primary custody of their two sons. Less than a year later, Father filed a petition to modify the parenting plan, seeking primary custody. Mother filed a counter-petition, also seeking modification of the parenting plan. She also filed a petition to cite Father in contempt. Since the divorce, Mother had become pregnant by another man, and she did not tell the child’s father that the child was born. Mother also lied to Father and others about the circumstances surrounding the child’s birth. Mother had remained unemployed since the divorce, and her only source of monthly income was child support from Father for his two sons. The parties’ oldest son was doing poorly in school and was frequently tardy or absent. The trial court found that a material change in circumstances had occurred, and that it was in the best interest of the children for Father to have primary custody. The court also found that Father’s actions did not rise to the level of contempt. Mother appeals, challenging the trial court’s decision to change custody, its refusal to find Father in contempt, and other procedural issues. Finding no error, we affirm. |
Madison | Court of Appeals | |
Kamarjah Gordon, Deceased et al. v. Greenview Hospital, Inc., d/b/a Greenview Regional Hospital et al.
The issue on appeal in this medical malpractice action is whether the defendant, a Kentucky hospital, had sufficient minimum contacts with Tennessee for our courts to exercise general personal jurisdiction over the defendant. Plaintiff contends Tennessee has general personal jurisdiction over the hospital, which is a Kentucky corporation, because annual reports filed with the Kentucky Secretary of State listed a Nashville, Tennessee, address as the “principal office address” of the corporation, the corporation’s officers and directors are located in Tennessee, and it is a subsidiary of a hospital corporation based in Tennessee. The trial court ruled that the defendant did not have sufficient minimum contacts with Tennessee to justify the exercise of general personal jurisdiction over the defendant. We affirm the jurisdictional determination. |
Davidson | Court of Appeals | |
Tom Salter v. Daryl Sanders
The trial court held that lessor was entitled to full rent for summer months although the air conditioning was inoperable. The trial court reasoned that since lessor terminated the month to month tenancy months earlier due to the fact that lessor did not intend to repair the HVAC system, then lessor should not be penalized and rent is owed for those months. We affirm. |
Cheatham | Court of Appeals | |
S.L.C., b/n/f E.C. and M.C. and A.J.C. , b/n/f L.A.S., v. Alden Joe Daniel, Jr.
Plaintiffs were granted a voluntary dismissal of their action, and defendant has appealed on the grounds that the Trial Court and attorneys were guilty of fraudulent conduct, and that he had a counter-claim pending at the time the action was dismissed. We affirm the Judgment of the Trial Court. |
Bradley | Court of Appeals | |
In Re Estate of David R. Leath
Decedent’s will could not be located after his death, and decedent’s widow and stepdaughters |
Knox | Court of Appeals | |
Club Leconte v. Caroline Swann
In the Trial Court, at the conclusion of plaintiff’s proof, defendant moved for the entry of an involuntary dismissal pursuant to Rule 41.02(2), and before the Trial Judge ruled on that Motion plaintiff moved for a voluntary dismissal which the Trial Court denied, and granted defendant’s Motion for an involuntary dismissal with prejudice. On appeal, we hold that the Trial Court erred in refusing to grant plaintiff’s Motion for a voluntary dismissal. |
Knox | Court of Appeals |
