State v. R.S. and K.S. M2002-00919-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Buddy D. Perry
This appeal involves a petition filed by the Department of Children's Services to terminate the parental rights of Mother and Father to their three minor children. The trial court denied the petition and ordered the children returned to Mother and Father. The Department appeals the decision of the trial court, arguing first that there was clear and convincing evidence to support termination, and secondly, even if the denial is upheld, the trial court lacked jurisdiction to order the children's return to their parents. Because we find the petition was properly denied, but further find the trial court lacked jurisdiction to order the children's return home, we affirm in part, vacate in part, and remand.
Franklin
Court of Appeals
Evan Roberts vs. Miller Industries E2002-01726-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Frank Brown, III
In this appeal from the Chancery Court for Hamilton County the Appellants/Defendants, Miller Industries, Inc. and Road One, Inc., contend that the Trial Court erred in awarding the Appellee/ Plaintiff, Evan J. Roberts, damages for breach of contract. The judgment of the Trial Court is affirmed in part and reversed and vacated in part, and the cause is remanded for collection of costs below.
Royden Russell and Judy Russell ("Plaintiffs") entered into a contract with Malvin L. Bray and Diedre Bray ("Sellers") to purchase a house. The sales contract required Plaintiffs to obtain an inspection by a professional home inspector. Plaintiffs hired Randall L. Douthat and Holly Douthat d/b/a The HomeTeam Inspection Service ("Defendants") to perform the home inspection. Royden Russell signed a form contract ("Contract") presented by Defendants. The Contract contained an exculpatory clause limiting Defendants' liability to the lesser of the cost of repair or the amount of the inspection fee. After moving into the house, Plaintiffs discovered structural problems. Plaintiffs sued Sellers, the realtors involved in the sale of the house, and Defendants. Plaintiffs filed a motion for partial summary judgment concerning the exculpatory clause contained in the Contract. Defendants responded by filing a Renewed Motion for Summary Judgment concerning, in part, the exculpatory clause. The Trial Court held the exculpatory clause was not against public policy and was enforceable. The Trial Court also granted Plaintiffs permission to file an interlocutory appeal. Plaintiffs applied to this Court and were granted an interlocutory appeal on the limited issue of whether the Trial Court erred in holding the exculpatory clause was not against public policy. We reverse.
Sullivan
Court of Appeals
Larry Benton v. Vanderbilt University M2002-00085-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Carol L. Soloman
This is a case of first impression regarding the enforceability of an arbitration agreement against a third party. The plaintiff was a passenger in an automobile accident and was treated at the defendant hospital. The hospital filed a statutory hospital lien against any proceeds the plaintiff might recover in any lawsuit arising out of the car accident. The plaintiff later successfully sued the tortfeasor for the injuries he sustained in the accident. Thereafter, the hospital sought to recover under its lien for the balance of the plaintiff's medical bills that were not paid to the hospital by the plaintiff's insurance carrier. The plaintiff filed this action against the hospital, claiming that the hospital's practice of balance billing violates the institution agreement between the hospital and the plaintiff's insurance carrier. The hospital filed a motion in the trial court to compel arbitration, pursuant to an arbitration provision contained in the institution agreement. The trial court denied that motion. The hospital now appeals the denial of its motion to compel arbitration. We reverse, concluding that the plaintiff, a third-party beneficiary to the institution agreement seeking to enforce his rights under that agreement, is bound by the arbitration provision contained within that agreement.
McMinn County vs. Ocoee Environmental E2002-00702-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John B. Hagler, Jr.
This appeal questions the validity of a resolution enacted by Appellant McMinn County imposing a surcharge for solid waste disposal at all Class I landfills located in McMinn County. The resolution as initially passed imposed a surcharge of $4.00 per ton of waste, and was subsequently reduced by McMinn County to $2.75 per ton. Appellee Environmental Trust Company ("ETC"), which owns one of the two landfills in the county, refused to pay the surcharge, asserting that it was actually an unlawful tax. McMinn County filed this action to require ETC to pay the surcharge. The Trial Court held that the resolution imposed an unlawful tax, and granted summary judgment in favor of ETC. We affirm the judgment of the Trial Court.
McMinn
Court of Appeals
Ann Utter vs. Howell H. Sherrod, Jr. E2002-00848-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Kindall T. Lawson
Howell H. Sherrod, Jr. ("Defendant") and Jerry A. Mooneyhan ("Dr. Mooneyhan") were partners. Defendant sued Dr. Mooneyhan regarding one of their partnership projects, Quality Dental Products. Dr. Mooneyhan died during the pendency of that matter. That suit resulted in a jury verdict for Dr. Mooneyhan that was affirmed on appeal. After the Quality Dental Products suit, Defendant withheld Dr. Mooneyhan's portion of the rents from another partnership property, the Bristol building. Ann Utter (formerly Mooneyhan) as Executrix of the Estate of Jerry A. Mooneyhan, deceased ("Plaintiff"), sued Defendant in chancery court seeking partition of the Bristol building and an accounting as to another partnership business, World Tech Fibers. Defendant claimed the chancery court lacked jurisdiction because he previously had filed a claim against the estate in probate court, which, Defendant argued, caused jurisdiction to be vested solely in the probate court. The Trial Court determined it had jurisdiction over the partition action and issues relating only to the Bristol building and World Tech Fibers. The Trial Court ordered and then confirmed partition by sale, awarded Plaintiff a judgment for certain sums related to the Bristol building and World Tech Fibers, and awarded Defendant a winding up fee as the surviving partner. Defendant and Plaintiff each appeal. We affirm in part, reverse in part, and remand.
Washington
Court of Appeals
Carroll Clabo vs. Great American Resorts vs. Jim Falin E2002-01008-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Rex Henry Ogle
Carroll Clabo and wife, Blanche Clabo; Dorothy Reed and husband, Earl Reed; Edna Myers and husband, Jerry Myers; and Kate Clabo and husband, Junior Clabo ("Plaintiffs") and Great American Resorts, Inc. ("Defendant") own neighboring properties in Gatlinburg, Tennessee. Defendant developed its property and during construction altered the natural drainage causing rainfall to be diverted onto Plaintiffs' properties. The diverted water caused a landslide that destroyed the access roadway to Plaintiffs' properties and caused damage to Carroll and Blanche Clabo's house. The Trial Court found a permanent nuisance existed and awarded all Plaintiffs damages for diminution in value and $10,000 for the damage to Carroll and Blanche Clabo's house. Defendant appeals claiming the Trial Court erred in finding a permanent nuisance. We affirm.
Sevier
Court of Appeals
Willard Malone vs. Judy Malone E2002-01257-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: G. Richard Johnson
In this post-divorce case, Willard Eugene Malone (Husband) filed a motion requesting the Trial Court to decrease or discontinue his alimony payments to Judy Mae Bishop Malone (Wife). The sole basis for the motion was Husband's allegation that Wife "is cohabiting with a third person . . .and is no longer in need of the alimony paid by [Husband]." Wife denied that a reduction or elimination of alimony was appropriate, alleging that the person who had lived with her did not provide her financial support or contribution, and that he no longer lived in her trailer at the time of her answer. Wife also alleged that she remained in need of the alimony payments. The Trial Court found no substantial material change in circumstances and ordered Husband to continue paying alimony in the amount of $1000 per month. Husband appeals. We affirm the judgment of the Trial Court.
Alice Beason vs. C.A.Beason E2002-01425-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Daryl R. Fansler
These appeals involve an equitable distribution of the Tier II railroad retirement benefits of C.A. Beason ("Husband"). When Alice Beason ("Wife") and Husband were divorced the first time in 1989, Wife admittedly made no claim for any of Husband's Tier II benefits and was awarded none. The parties then remarried in 1992 and were divorced for the second time in 1996. A Qualified Domestic Relations Order ("QDRO") eventually was entered in the second divorce which awarded Wife 100% of Husband's Tier II benefits. After Husband became disabled, Wife began receiving all of his Tier II benefits which had accumulated during Husband's 31 years of employment with the railroad. Husband claims he then realized for the first time the true effect of the QDRO and filed a Tenn. R. Civ. P. 60.02(5) motion seeking relief from the judgment. Husband's Rule 60.02(5) motion was granted and the Trial Court entered a new QDRO awarding Wife only 100% of the Tier II benefits which had accrued during the second marriage. Wife then sought relief by Rule 60.02(5) from the judgment entered in the first divorce in 1989, asking that Trial Court to award her an equitable distribution of the Tier II benefits which had accrued during the first marriage. Wife's motion was denied. Wife appeals both decisions. On appeal, we affirm the Trial Court's decision to grant Husband relief from the judgment in the second divorce, and we also affirm the Trial Court's refusal to grant Wife relief from the judgment in the first divorce.
Knox
Court of Appeals
Charles Woods vs. Angelika Woods E2001-02461-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John S. Mclellan, III
In this post-divorce case, Charles Grady Woods, acting pro se, appeals the Trial Court's orders finding him in contempt of court and awarding his former wife, Angelika Mazur Woods, certain sums which the Court found due and owing under the final decree of divorce. We affirm the judgment of the Trial Court.
Sullivan
Court of Appeals
W2002-02150-COA-R3-CV W2002-02150-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Roger A. Page
State Dept of Children's Srvcs v. D.D.B. M2002-00523-COA-R3-JV
Authoring Judge: Judge Stella L. Hargrove
Trial Court Judge: John J. Hestle
This appeal arises from the termination of parental rights by the juvenile court. We affirm the juvenile court.
Montgomery
Court of Appeals
Richard Lee v. City of Lavergne M2001-02098-COA-R3-CV
Authoring Judge: Sr. Judge Allen W. Wallace
Trial Court Judge: Robert E. Corlew, III
The cause was heard by the Chancery Court for Rutherford County, on a petition for Writ of Certiorari. The Chancellor remanded the case and ordered the City of LaVergne to provide plaintiff a hearing before the City Administrator. The City appealed. We find the appellee was an at will employee, and as such, has no property interest in his job. Therefore, a due process claim is inapplicable. Appellee relies upon the City of LaVergne Employee Manual. The Manual does not contain clear and binding language to create a contract of employment, and does not create any property rights in appellee. Therefore, the judgment of the Chancellor is reversed.
Rutherford
Court of Appeals
Pacific Design Ventures v. Big River Breweries M2001-02395-COA-R3-CV
Authoring Judge: Sr. Judge Allen W. Wallace
Trial Court Judge: Irvin H. Kilcrease, Jr.
The Chancery Court of Davidson County granted summary judgment and dismissed appellants' suit. On appeal, the appellants argue the Chancellor erred in striking their response to appellees' statement of undisputed facts, amended complaint and affidavit supporting the amended complaint as being late-filed. We find the Chancellor did not abuse his discretion, and we also find summary judgment was appropriate. Therefore, we affirm.
Leroy McBee v. David Elliott M2002-00277-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Jeffrey F. Stewart
In this case, a brother and sister dispute who is the actual owner of property formerly owned by their deceased parents. We are asked to decide if the trial court properly relied upon promissory estoppel and adverse possession to recognize that the brother had a defense to this claim for possession. We affirm the decision of the trial court.
Franklin
Court of Appeals
Edward Gray vs. Johnson Mobile Homes W2001-01982-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Dewey C. Whitenton
This is a contract case. The buyer contracted to purchase a mobile home. After the home was delivered, the buyer inspected it and found it to be in unsatisfactory condition. The buyer complained to the seller and then to the manufacturer, each of whom attempted to remedy the problems. The buyer found the repairs to be unacceptable and revoked his acceptance of the mobile home. The buyer sued the seller, the manufacturer, and the finance company. The buyer settled with the finance company. The seller became insolvent and did not appear at the trial. Consequently, the buyer went to trial against the seller and the manufacturer, with only the manufacturer present. The trial court found for the buyer and apportioned the damages between the seller and the manufacturer. On appeal, the buyer argues that the trial erred in apportioning the damages between the seller and the manufacturer, and in awarding him insufficient damages. The manufacturer argues that the trial court erred in denying its motion for involuntary dismissal, and in awarding damages against the manufacturer. We affirm.
Hardeman
Court of Appeals
Ben Wilson vs. Kate Wilson Ward E2001-02177-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Thomas R. Frierson, II
The Trial Court, exercising its equitable powers, ordered property sold and proceeds distributed in accordance with the terms of a Will in an estate closed in 1982. On appeal, we affirm.
