Harper Enterprises vs. City of Bean Station E2002-01734-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Richard R. Vance
The City of Bean Station ("the City") denied the application of the plaintiff ("the applicant") for a permit to sell beer for off-premises consumption. The applicant filed a petition for certiorari, naming the City and seeking a writ of mandamus to compel it to issue the requested permit. On cross motions for summary judgment, the trial court granted the City summary judgment. The applicant appeals. It contends that the City, "by actions and/or inaction," has caused its beer ordinance, which limits beer permits within the municipality to two, to be invalid. In the alternative, it contends that the City "has engaged in discriminatory, arbitrary and capricious application of the ordinance." We vacate the trial court's judgment and remand for further proceedings.
Grainger
Court of Appeals
Denver Waddell vs. Lawrence Ogledzinkski E2001-03131-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Dale C. Workman
Knox County -In this appeal from the Knox County Circuit Court the Appellant, Denver J. Waddell, contends that the Trial Court erred in dismissing his case by grant of summary judgment upon grounds that the cause of action against the Appellee, Lawrence M. Ogledzinkski, is precluded by T.C.A. 50-6-108(a). We affirm the judgment of the Trial Court.
Knox
Court of Appeals
Sammy Vest vs. Francis Goswitz E2001-01613-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: James B. Scott, Jr.
This is a medical malpractice case filed on January 3, 2000, and amended on January 11 of the same year. The suit was by Sammy W. Vest and his adult children, Anglia M. Somner, Cheryl D. Travis, and Danny W. Vest, against Dr. Francis Goswitz and Dr. Helen Vodopick. The suit seeks damages for the Defendants' failure to refer Mr. Vest to a specialist, resulting in an injury to him as well as to his children. The Trial Judge sustained a motion by the Defendants to dismiss the children as parties Plaintiff, and later a motion for summary judgment as to Mr. Vest's suit. He further granted sanctions pursuant to Rule 11.03 against counsel for the Plaintiff. We affirm.
Anderson
Court of Appeals
Gweneth J. Freels vs. Evelyn Jones E2002-00895-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Frank V. Williams, III
Defendant demanded a jury in Answer but the trial judge ruled defendant waived right to a jury trial. On appeal, we affirm.
Morgan
Court of Appeals
Alica Rakestraw vs. Gregory Rakestraw E2002-01151-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Jerri S. Bryant
The sole issue in this divorce case is whether the Trial Court reached the correct decision regarding custody of the parties' child. The Court granted primary custodial care of the parties' daughter, Kendra Paige Rakestraw, then 10 years old, to Gregory Keith Rakestraw ("Father"). Alica Delane Rakestraw ("Mother") argues on appeal that the evidence preponderates against the Court's exercise of discretion in rendering its custody decision, and that the Court erred in denying her motion to alter or amend the judgment and her motion for a new trial. We affirm the judgment of the Trial Court in all respects.
Bradley
Court of Appeals
Chelsea Pirkle vs. Justin Parker E2002-01751-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Dale C. Workman
The trial court refused to set aside the Default Judgment. On appeal, we vacate and remand.
Knox
Court of Appeals
Nancy Crawford vs. Roger Crawford E2002-00372-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Thomas R. Frierson, II
Plaintiff/Appellant Nancy Crawford owns an interest in a parcel of real property located in Hawkins County, Tennessee as tenants in common with the Defendants/Appellees. Appellant Nancy Crawford filed suit seeking a partial partition in kind of the subject property and requesting a tract containing approximately .604 acre be set aside for her. The .604 acre adjoins land owned by Ms. Crawford. The .604 acre contains a barn, which Ms. Crawford and her late husband had maintained, improved, and used since the late 1980's believing it was located on their property. Appellees opposed a partition in kind and requested a partition sale. The Trial Court found it in the manifest best interest of all parties for the property to be sold, rather than partitioned in kind, and ordered a sale. We modify the judgment, affirm as modified, and remand.
Hawkins
Court of Appeals
Kanta Keith, et al vs. Gene Ervin Howerton, et al E2002-00704-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Dale C. Workman
This case is on appeal for the second time. In the first appeal, we held that the defendants violated the Tennessee Consumer Protection Act ("the Act") in certain pawn transactions with the plaintiffs. We remanded the case to the trial court for a determination of whether the plaintiffs were entitled to treble damages and attorney's fees under the Act. Following a bench trial on these issues, the court below determined that the plaintiffs were not entitled to treble damages, but that they were entitled to a slight augmentation of their compensatory awards. In addition, the trial court awarded attorney's fees and costs, in amounts which are substantially less than those claimed by counsel. The plaintiffs appeal, arguing that the trial court erred in refusing to award treble damages and in its award of fees and costs. By way of a separate issue, the defendants argue that the trial court erred in granting a declaratory judgment to the plaintiff, Kanta Keith ("Mr. Keith"), following the death of his wife, the plaintiff, Darlene Keith ("Mrs. Keith"). We affirm in part, vacate in part and remand.
Knox
Court of Appeals
James Thompson vs. Knoxville Teachers Federal Credit Union E2002-00780-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Daryl R. Fansler
James L. Thompson ("Plaintiff") was the principal stockholder, director, and officer of People Personnel Industrial Corporation. Plaintiff began kiting checks when the corporation started having financial difficulties. Plaintiff's actions resulted in a substantial monetary loss to Knoxville Teachers Federal Credit Union ("Credit Union"). After both the corporation and Plaintiff filed for bankruptcy, the parties entered into an agreement whereby the Credit Union agreed not to pursue or assist any other party in pursuing a cause of action against Plaintiff based on the check kiting. Thereafter, Plaintiff was prosecuted in federal court. The Credit Union supplied information to the United States Government pertaining to the amount of its financial losses. After Plaintiff pled guilty in federal court to defrauding the Credit Union, he was ordered to serve a small amount of time in prison and pay restitution of $74,417.29 to the Credit Union. Plaintiff brought this lawsuit claiming the Credit Union pursued the order of restitution in the criminal proceeding and thereby violated the terms of the settlement agreement. The Trial Court granted summary judgment to Defendants, and Plaintiff appeals. We affirm.
The Rogers Group vs. Anderson County E2002-00409-COA-R9-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Telford E. Forgerty, Jr.
After case was tried, the Trial Judge recused and another Judge was designated who granted a new trial on all issues. On appeal, we affirm.
Anderson
Court of Appeals
Troy Buckles vs. Shira Riggs E2002-00649-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Thomas R. Frierson, II
Shira Dawn McKay Buckles Riggs ("Mother") and Troy Dale Buckles ("Father") were divorced in 1994. Mother was awarded custody of the parties' minor son. In 2001, Father first sought increased visitation and then custody. Mother claimed Father was in arrears in his child support payments. After a trial, the trial court concluded there had been no material change in circumstances and custody should, therefore, remain with Mother. The trial court determined Father was in arrears in his child support payments in the amount of $13,894. The trial court also prohibited both parties from drinking alcohol "while in possession of the child." Father appeals. We modify the judgment to require the parties to undergo counseling, and affirm as modified.
Hawkins
Court of Appeals
Marisa Lovin vs. Charles Nave E2002-00686-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Ben W. Hooper, II
Marisa R. Lovin ("Plaintiff") was involved in a one car accident on her way home from Dr. Charles E. Nave's ("Defendant") dental office. Although Plaintiff has no memory of the accident itself, she claims she suffered an adverse reaction to an anesthetic agent administered by Defendant, which caused the car accident. Plaintiff sued Defendant for dental malpractice claiming Defendant failed to warn her about potential side effects of the anesthesia and did not properly manage her treatment after administering the anesthetic agent. The Trial Court granted Defendant summary judgment. Plaintiff appeals. We affirm.
Sevier
Court of Appeals
Department of Children's Services vs. F.E.B. E2001-00942-COA-R3-JV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Carey E. Garrett
This appeal from the Knox County Juvenile Court questions whether the Juvenile Court erred in terminating the parental rights of the Appellant, F.E B., with respect to his child, R.B., upon petition of the Appellee, State of Tennessee Department of Children's Services. We affirm the judgment of the Juvenile Court and remand for collection of costs.
Knox
Court of Appeals
TZE-Pong "Raymond" Ku vs. State E2002-01076-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Tze-Pong "Raymond" Ku ("Plaintiff") is a student at the East Tennessee State University College of Medicine ("College"). After completing his first two years of study, Plaintiff was required to take the USMLE Step 1 examination. He took this examination and failed. Thereafter, the College removed Plaintiff from his third year clerkships and eventually created a list of requirements he had to meet in order to be allowed to resume his classes. After successfully suing the College in federal court based on a procedural due process violation, Plaintiff brought the present lawsuit for damages against the State of Tennessee claiming breach of written contract, to wit: his letter of acceptance to the College and the College's student handbook. The Claims Commission concluded these documents did not constitute a written contract and dismissed the lawsuit for lack of subject matter jurisdiction. Plaintiff appeals, and we affirm.
Court of Appeals
William Davis vs. Karen Davis E2002-01404-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: William M. Dender
In divorce action the Trial Court ordered husband to pay alimony and ordered division of marital property. The Judgment is affirmed as modified.
Knox
Court of Appeals
Tennessee Sports Complex vs. Lenoir City Beer Board E2001-02481-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Frank V. Williams, III
The Trial Court revoked appellant's permit to sell beer in Lenoir City. On appeal, we affirm.
Loudon
Court of Appeals
Sandra Elmore vs. Greg Cruz E2001-03136-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Jackie Schulten
In this case the Appellant/Defendant, City of Chattanooga, appeals the judgment of the Circuit Court for Hamilton County awarding the Appellee/Plaintiff, Sandra Yvonne Elmore, compensatory damages for injuries sustained as a result of her arrest and imprisonment by the Chattanooga Police Department. We vacate the judgment of the Trial Court and remand.
Hamilton
Court of Appeals
Jimmy Ray Dougherty, Jr. vs. Kaye Michelle Hodges Olson E2002-00087-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: C. Van Deacon
Custody of minor child was ordered changed from mother to father by the trial court. We affirm.
Bradley
Court of Appeals
Hellen Wilson vs. CSX Transportation E2002-00291-COA-R9-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Neil Thomas, III
This interlocutory appeal raises the question of the admissibility of the testimony of three expert witnesses which the Plaintiff, Hellen M. Wilson, sought to present at trial. The Trial Court excluded the expert testimony of Dr. William J. Nassetta and certified pursuant to T.R.A.P. Rule 9 the following question for this Court: "whether the testimony of the expert witness, William J. Nassetta, M.D., as reflected in [his] attached affidavit,. . .is admissible under the doctrine of the Tennessee Supreme Court decision in McDaniel v. CSX Transportation, Inc." The Trial Court also granted permission to CSX Transportation (CSXT) to appeal its ruling admitting the testimony of two other expert witnesses offered by the Plaintiff. We hold that the testimony of all three expert witnesses is admissible under the principles enunciated in McDaniel.
Hamilton
Court of Appeals
Jack & Ruth Parnell vs. Delta Airlines E2002-00589-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Neil Thomas, III
The Trial Court granted defendants summary judgment by finding defendants' conduct did not constitute outrageous conduct. We affirm.
Hamilton
Court of Appeals
Norma Pendolal v. Shirley Butler M2002-00131-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Russell Heldman
This is an undue influence and fraud case. The father executed a will leaving his personal and real property to one daughter, with the remainder of his estate to be divided among all five of his children. The daughter moved from Chicago to Tennessee to care for the father. The father added the daughter's name to his checking account and bought a mobile home in which he and the daughter lived. The daughter utilized money from the joint checking account for her personal benefit. Later, the father executed a power of attorney in the daughter's favor. The daughter then transferred one of the father's certificates of deposit to herself. When the father died, no funds remained to be divided among the five siblings. The father's other four children filed suit against the daughter, alleging undue influence. The trial court referred the case to a special master, who found there was no confidential relationship prior to execution of the power of attorney. The special master found, however, that a confidential relationship existed after the execution of the power of attorney. The trial court found that the daughter rebutted the presumption of undue influence and invalidity of the transaction that took place after execution of the power of attorney. The trial court then concurred in the special master's findings. The plaintiffs appeal. We affirm as to the transactions prior to execution of the power of attorney. We reverse as to the transaction after execution of the power of attorney, concluding that the presumption of the invalidity of that transaction was not rebutted by clear and convincing evidence of the fairness of the transaction.
This is a dispute between the deceased testator's second wife and the two children of his first marriage. The testator and his wife executed mutual and reciprocal wills which passed the bulk of their estate to the survivor. The spouses agreed, and their wills reflected, that when the survivor died, the estate was to go equally to the testator's children. In conjunction with the wills, the spouses executed an agreement that they would not change their wills even after the death of the other. After the testator's death, the wife began dissipating the estate, selling the family home, and giving her own child the testator's expensive grandfather clock. In an effort to preserve the estate, the testator's children commenced the underlying action, seeking to establish a resulting trust. After the trial court granted the wife's motion for summary judgment, the testator's children lodged this appeal. Because testator's will gave the wife his estate in fee simple, she inherited the real property as tenant by entirety, and there is no clear and convincing evidence that the testator intended her merely to hold the property in trust for his children, we must affirm.
Homeowners sued a builder for defective construction. The trial court awarded damages for breach and attorney's fees under the Tennessee Consumer Protection Act. We reverse the award of attorney's fees based upon no proof of deceptive, misleading or unfair conduct by the builder.
