ESI Companies, Inc. v. Ray Bell Construction Company, Inc., et al.
This appeal involves the applicability and enforceability of a forum selection clause in a construction contract. The contract was for the design and construction of a Kentucky correctional facility. The contract between the Commonwealth of Kentucky and the general contractor, a Tennessee corporation, provided that all actions on the contract must be filed in Franklin County Circuit Court in Frankfort, Kentucky. The general contractor entered into a subcontract with another Tennessee corporation for the performance of certain work on the Kentucky correctional facility. The subcontract incorporated all terms of the original contract by reference and contained a “flow-down” provision. The subcontractor later sued the general contractor in Shelby County, Tennessee. When the general contractor moved to dismiss for lack of venue, the subcontractor contended that the forum selection clause did not apply to its claims. The subcontractor also contended that the forum selection clause was unenforceable under the facts of this case. The trial court found in favor of the subcontractor. We granted the general contractor’s Rule 10 application for extraordinary appeal. We reverse and remand, finding that the forum selection clause was applicable and enforceable, and the lawsuit should have been filed in Kentucky. |
Shelby | Court of Appeals | |
Swanson Developments, LP v. Bill Trapp and Jim Olsen, Individually, and d/b/a Paksource a/k/a Parksource
Plaintiff filed this action in General Sessions Court, seeking back rent and possession of properties leased to defendants. The Sessions Court gave plaintiff monetary judgment against defendants, who appealed to Circuit Court and made an appeal bond in the amount of $500.00 pursuant to Tenn. Code Ann. § 27-5-103. In Circuit Court plaintiff contended that defendants should have given an appeal bond as specified in Tenn. Code Ann. § 29-18-130 and asked the Circuit Court to dismiss the appeal. The Circuit Court refused and ultimately dismissed plaintiff’s claims. On appeal we hold that defendants failed to give the proper statutory bond to appeal the case to Circuit Court and that the appeal was not properly perfected and the Judgment of the Sessions Court will be reinstated upon remand. |
Rutherford | Court of Appeals | |
Town of Huntsville, Tennessee, et al. v. Scott County, Tennessee, et al.
The dispositive issue on appeal in this annexation dispute by the annexing municipality against the county and Tennessee Commissioner of Revenue is which tax allocation statute controls the allocation of Local Option Revenue derived from the annexed territory, the one in effect when the municipality passed the annexation ordinances upon final reading or the one in effect when quo warranto litigation challenging the ordinances was concluded. The county and Commissioner of Revenue contend the statute in effect when the quo warranto actions challenging the validity of the ordinances were concluded applies, because that is the date the annexations became operative. The municipality contends that the tax scheme in effect when the ordinances were passed by final reading applies became the quo warranto actions challenging the ordinances were dismissed due to the petitioners’ failure to effect sufficient service of process on the municipality. The Chancellor ruled in favor of the municipality, finding in pertinent part that the quo warranto litigation that was filed but not followed by sufficient service of process had no effect on the operative dates of annexation. We reverse, finding that the statute in effect when the quo warranto litigation was concluded controls the allocation of tax revenue from the annexed territories. |
Scott | Court of Appeals | |
Lisa Faye Roland Camp v. Randy Coleman Camp
This appeal arises from a divorce action. Husband appeals the trial court’s award of alimony in futuro in the amount of $1600 per month to Wife. Wife asserts this appeal should be dismissed for unclean hands. She further asserts the trial court erred by finding the parties stipulated as to grounds for divorce, in setting alimony at $1600 per month, by not ordering an automatic increase in alimony upon emancipation of the children, by failing to award her all of her attorney’s fees, and by ordering Husband to name Wife and the children as beneficiaries of his life insurance policy. We affirm. |
Crockett | Court of Appeals | |
Joanne Ruth Bearb v. Michael Edwin Bearb
This appeal arises from a divorce case. The trial court awarded Wife a divorce based on adultery and awarded her alimony in futuro the amount of $5000 per month for ten years and $2500 per month thereafter. The trial court additionally awarded Wife alimony in solido in the amount of $100,000, and awarded Wife her attorney’s fees. Husband appeals. We affirm the award of divorce to Wife and the alimony awards, but reverse the award of attorney’s fees. |
Madison | Court of Appeals | |
Marc A. Schwartz v. James Neely, Commissioner of Labor & Workforce Development of the State of Tennessee
This appeal arises from the denial of Plaintiff’s claim for unemployment benefits by the Tennessee Department of Labor and Workforce Development. We affirm. |
Shelby | Court of Appeals | |
Thomas Morrow, et al v. Ronnie Bull, et al.
The tenants, who leased a newly-constructed house from the builder/owner, sued the builder/owner alleging, among other things, that the house was negligently constructed in that it was built on a site that unreasonably exposed the house to excessive moisture and with a deficient water runoff and drainage system. The tenants sought compensation for personal injury and property damage allegedly caused by toxic mold in the house due to excessively wet basement walls. The trial court granted the builder/owner summary judgment. Upon review, we vacate the trial court’s summary judgment based on our finding that genuine issues of material fact exist. |
Hamilton | Court of Appeals | |
Central Sales and Services, Inc., Edward J. Kehrer and Ralph A. Deavers v. Mark A. Berg
Plaintiff corporation and stockholders sued defendant to enforce a Stock Redemption and Shareholder Agreement signed by defendant, when he refused to comply with the terms of the Agreement after he was terminated from the company. The Trial Court granted plaintiff partial summary judgment, finding that the Agreement was enforceable, and defendant has appealed. We affirm the partial summary judgment of the Trial Court and remand, with instructions. |
Humphreys | Court of Appeals | |
David Michael Rust v. Southern Environmental Contractors, Inc., et al.
An employee/minority shareholder appeals the summary dismissal of his action in which he sought to recover commissions the corporation allegedly owed him for prior work and damages arising out of an alleged breach of fiduciary duty and fraud by the president/majority shareholder. The trial court granted the Motions for Summary Judgment filed by the corporation and by the president/majority shareholder, finding the employee failed to show that there was a genuine issue for trial as to whether employee was owed commissions and whether the president/majority shareholder committed fraud or breached his fiduciary duty. We affirm. |
Davidson | Court of Appeals | |
M. R. Stokes Company, Inc. v. Michael L. Shular, et al.
This is a construction case. In a contract prepared by the plaintiff, contractor agreed to install sewer lines, water lines, roads and to perform certain site preparation work for a section of a subdivision development owned by the defendant-owner. The total contract price is $925,000, which includes the material and labor to complete the project. The trial court entered judgment for contractor. Owner appeals and contractor cross-appeals. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. |
Sumner | Court of Appeals | |
State of Tennessee, Department of Children's Services v. Leigh Ann McAlister, et al.
This is a termination of parental rights case. Mother/Appellant appeals the Order of the Shelby County Juvenile Court terminating her parental rights to her two minor children. Specifically, Appellant asserts that the grounds of persistence of conditions and failure to substantially comply with the permanency plans are not supported by clear and convincing evidence in the record, and that termination of her parental rights is not in the best interests of the children. Because we find clear and convincing evidence in the record to support termination on the grounds of failure to substantially comply with the permanency plans, and clear and convincing evidence that termination is in the best interests of the children, we affirm. |
Shelby | Court of Appeals | |
Keenan R. Keen v. Tennessee Department of Correction, et al.
A Prison Disciplinary Board found a prisoner guilty of two disciplinary infractions, fined him $5.00 for each infraction and sentenced him to two thirty-day terms in punitive segregation. The prisoner filed a petition for writ of certiorari, alleging that there were irregularities in the procedures followed by the disciplinary board and that its actions were arbitrary, capricious, and characterized by an abuse of discretion. The trial court granted the writ, and the department accordingly sent the administrative record to the court for review. The respondents then filed a motion for judgment on the record. The trial court granted the motion and dismissed the prisoner's claim. We affirm the trial court. |
Hickman | Court of Appeals | |
Daniel Pantoja Garcia v. Norfolk Southern Railway Company
In this appeal of a directed verdict in a wrongful death case, Daniel Pantoja Garcia (“Husband”) claims that Norfolk Southern Railway Company (“Norfolk Southern”) was negligent in failing to warn his now-deceased wife, Lydia Garcia (“Wife”), of the presence of diesel fuel inside a fuel tank that Wife, as an employee of Progress Rail Services Corporation (“Progress Rail”), was assigned to dismantle. As Wife was cutting the tank with a torch-cutter on Norfolk Southern’s property, the tank exploded, killing Wife. The trial court granted a directed verdict because it found no evidence that Norfolk Southern owed any duty in this case. We affirm. |
Hamilton | Court of Appeals | |
Melanie Gayle King (Lyon), et al. v. James David King
The mother and stepfather of two minor children filed a petition against the father of the children to terminate the father’s parental rights. The petitioners alleged, inter alia, that the father abandoned the children by failing to exercise any of the residential time and vacation time awarded to the father in the divorce and that he had willfully failed to visit the children during the four months preceding the filing of the petition. Following a bench trial, in which the mother and stepfather were represented by counsel, but the father was pro se, the trial court dismissed the petition to terminate based upon the finding that “due to the costs of transportation between the parties respective homes in Giles County and Cannon County and due to [the father’s] limited income,” the petitioners had failed to establish the ground of abandonment. The mother and stepfather have appealed, contending the trial court failed to correctly apply the law to the facts of this case and that the evidence clearly and convincingly proves that the father’s failure to visit was willful due to the fact he had a vehicle, for which he could afford insurance, and the cost of driving the approximately sixty miles between their homes was within his financial means. We have determined that the trial court committed reversible error when it failed to appoint a guardian ad litem to represent the best interests of the minor children, which is mandated by Tenn. S. Ct. R. 13 § 1(d)(2) in proceedings to terminate a parent’s rights when the petition is contested. We have also determined that if the father was indigent, which fact may be significant to the issue of willfulness, he had a constitutional right to appointed counsel. As Tenn. S. Ct. R. 13 § 1 (c) and (e) mandates, when the father appeared without counsel, the trial court had an affirmative duty to advise the father of his rights and to conduct an indigency hearing to determine if he was without sufficient means to pay reasonable attorney fees for representation in this case and, if so, to appoint counsel to represent him. We therefore vacate the judgment of the trial court and remand this matter to the trial court for further proceedings consistent with this opinion, including if necessary a new trial on the merits of the issues raised in the petition filed in this matter. |
Cannon | Court of Appeals | |
Donald T. Arendale v. Glenda S. Arendale (Schuett)
The trial court entered an order modifying its earlier parenting plan. After the Court’s judgment, the mother filed a motion attacking the jurisdiction of the Court to modify the prior order. The trial court overruled the motion. On appeal, we find that neither the child nor either of the parents have resided in Tennessee since 2002. Therefore, the trial court did not have subject matter jurisdiction to modify its prior order. We reverse and dismiss. |
Shelby | Court of Appeals | |
Boggs Kurlander Steele, LLC v. Horizon Communications, Inc.
This appeal involves a declaratory judgment regarding the termination of a contract to install a cable system and provide cable service to a trailer park as well as a counter-complaint for damages. The trial court determined that the contract was properly terminated and dismissed the counter-complaint. On appeal, the Appellant argues that (1) the Appellee waived its contractual right to have this matter decided pursuant to Kentucky law; (2) that the trial court erred in determining that it materially breached the contract by failing to install a new system in a timely manner; (3) that the trial court erred in determining that it did not provide cable service equal to the service rendered by the former cable provider; (4) that the trial court erred in determining that the contract was properly terminated; (5) that it is entitled to damages because the Appellee failed to notify the Appellant with information about new residents as required by the contract; and (6) that the trial court erred by awarding the Appellee its attorney’s fees and failing to award the Appellant its attorney’s fees. We find that the Appellee has waived its right to have this matter determined pursuant to Kentucky law. The trial court did not err in determining that the Appellant materially breached the contract by not providing cable service equal to the service previously provided and that the contract was properly terminated. Furthermore, we find that the Appellant is not entitled to damages because the Appellant did not prove what damages it incurred due to the Appellee’s failure to provide the homes of new residents as required by the contract. Finally, the trial court did not err in awarding the Appellee’s attorney’s fees. The judgment of the trial court is affirmed, and this cause is remanded to the trial court for the award of Appellee’s attorney’s fees on appeal. |
Davidson | Court of Appeals | |
City of Knoxville v. Knox County, Tennessee - Concurring
The question in this appeal is which statutory local option sales tax distribution system is to be applied. We have essentially concluded that the appropriate statute is the one in effect when the distribution is to be made. I concur totally with the majority opinion and write separately simply toemphasize the context in which this decision is made and the consistency of the logic of the opinion with the practicalities of that context. |
Knox | Court of Appeals | |
City of Knoxville v. Knox County, Tennessee
The issue on appeal in this annexation dispute between the annexing city and the county is which tax allocation statute controls the allocation of Local Option Revenue derived from the annexed territory: the one in effect when the city passed the annexation ordinance on final reading, or the one in effect when the annexation ordinance became operative following a protracted quo warranto action. The city, which annexed valuable retail and commercial property, contends the tax scheme in effect in 1995 when the ordinance passed final reading applies. The county contends Tenn. Code Ann. § 6-51-115(b)(2) (1998), which was enacted after the ordinance was passed by the city, applies because it was in effect when the ordinance became operative. The Chancellor ruled in favor of the city, finding the statute in effect when the city passed the annexation ordinance applies. We reverse finding Tenn. Code Ann. § 6-51-115(b)(2) (1998), which was in effect when the ordinance became operative, controls the allocation of tax revenue from the annexed territory. |
Knox | Court of Appeals | |
Flautt & Mann, a Partnership v. The Council of The City Of Memphis, et al.
This appeal involves protracted litigation concerning the zoning of a parcel of land located in Memphis, Tennessee. After a bridge, which provided the only access to the property, collapsed, the landowners planned to install and maintain billboards on the subject parcel by helicopter. The landowners initially applied to the Memphis City Council to have the subject parcel re-zoned from agricultural uses to commercial uses. The Memphis City Council rejected the landowners’ application. The landowners filed a petition for review by common law and statutory writ of certiorari and an action for declaratory judgment in the circuit court. The circuit court entered an order reversing the decision of the Memphis City Council and remanding the case to the Council for a new hearing. Upon remand, the Memphis City Council once again rejected the landowners’ application. The landowners filed a petition for contempt in the circuit court alleging the Council violated the court's order on remand. The trial court found that the Council violated its order, but that the Council was not in willful contempt of the court’s order because it relied on the erroneous advice of its lawyer in interpreting the order. The trial court remanded the case to the Memphis City Council for a new hearing. The City filed an appeal in this Court. After noting that reliance on the advice of counsel is not a defense to contempt, we reversed the trial court’s decision and remanded the case to the trial court to determine if the contempt was willful. On remand, the trial court found that the City was in willful contempt of the trial court’s order and assessed daily damages of $1,500, accruing from June 13, 2003 order, until the Council complied with the court’s order. The City filed a second appeal in this Court. We vacate the trial court’s damages order and remand the case to the trial court for further proceedings consistent with this opinion. |
Shelby | Court of Appeals | |
Federal Express vs. The American Bicycle Group, LLC - Concurring
I concur in the majority opinion. I write separately to express my personal belief that the General Assembly should consider whether the result in this case – litigation in a county totally unrelated to the subject matter of the litigation and essentially unrelated to the defendant – indicates that the public policy, as expressed in the applicable statutory provisions, should be changed to avoid such a result. It occurs to me that the better policy is to exclude from the list of permissible venues |
Knox | Court of Appeals | |
Willard D. Gore, et al. v. Tony Stout, et al.
This appeal involves a dispute between two landowners over use of a route across the defendants’ land that the plaintiffs use for access to their nearby land. Plaintiffs filed suit contending they had a right to use the disputed route. The trial court determined that the route had been dedicated and accepted as a public road, that the plaintiffs were entitled to a prescriptive easement over the defendants’ land, and that the plaintiffs had a right to use the road by adverse possession. We have determined that the contested section of the route is not a public road, that adverse possession does not apply, and that the plaintiffs are entitled to a prescriptive easement over the defendants’ land. |
Putnam | Court of Appeals | |
In Re: B. C. W. John Gregory Wilson v. Naomi Jones, et al.
This is an appeal from the dismissal of a petition to modify custody of a minor child. The trial court determined that the petitioner, the natural father of the child, should not be afforded the superior rights of a parent. We disagree and reverse. |
Davidson | Court of Appeals | |
Joe Gambrell, et al. v. Sonny Nivens, et al.
This case involves the enforcement of restrictive covenants in equity. After subdividing their property, imposing restrictions on the three lots they sold, and retaining the remaining land, vendors brought suit against remote grantees to enforce the restrictive covenants and to enjoin them from operating a wedding chapel, for commercial use, on the land. The central issue on appeal is whether the restrictions bind the remote grantees when the covenants were listed on an undated and unsigned attachment to a deed that neither identified encumbrances nor incorporated the attached restrictions. Following a trial on the matter, the trial court permanently enjoined the commercial activity because the remote grantees took title with actual notice of the restrictions. Finding ample support for the imposition of an equitable servitude, we concur in the trial court’s judgment. Affirmed and remanded. |
Fayette | Court of Appeals | |
MBNA America Bank N.A. v. Charles Hendricks
Bank filed suit to enforce an arbitration award for a debt owed by a former credit card holder. The trial court granted summary judgment against the debtor, who appeals based on alleged procedural improprieties. We affirm. |
Cheatham | Court of Appeals | |
Sarah Elizabeth Ferguson v. Johnny Wayne Ferguson - Dissenting
Because I disagree with the majority’s conclusion as to the classification of some of the personal property at issue in this appeal, I must dissent. It is undisputed that the boat and trailer were Husband’s separate property prior to the marriage. Consequently, we must begin with the presumption that they should be classified as his separate property. Tenn. Code Ann. § 36-4-121(b)(2). Therefore, the burden of proving that the property had been transmuted into marital property lay with Wife. Based on the record before us, I do not believe that Wife met that burden. |
Lawrence | Court of Appeals |
