James Daniel Marshall v. Jenine Estelle Marshall
Husband appeals the entry of a default judgment and the resulting Final Decree in a divorce action. Wife filed a complaint for divorce; Husband filed an answer and counter-complaint. Later in the proceedings, Wife filed a motion for default judgment and other relief against Husband due to his failure to comply with the court's discovery deadline. The trial court entered an order granting a default judgment against Husband, striking his pleadings, and deeming Wife's discovery requests admitted. Husband timely filed a motion to set aside the order on the ground he did not receive proper notice of the hearing, which the trial court denied. We have determined that Husband did not receive proper notice; as a consequence the order granting the default judgment and other relief is void. Therefore, the trial court erred as a matter of law in denying Husband's motion to set aside the order. The court's failure to set aside the order also greatly impaired Husband's right to assert the defenses and affirmative claims that were stricken. Accordingly, the Final Decree is also reversed and we remand for a new trial of the issues properly raised by the parties in their pleadings subject, of course, to Husband complying with discovery and the trial court's orders. |
Davidson | Court of Appeals | |
First Horizons Home Loan Corporation d/b/a First Tennessee Home Loans, et al.
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Shelby | Court of Appeals | |
Gerald and Helen Lilly, Individually and as Guardians and Next of Kin of Tadarius M. Moore, Deceased v. Metropolitan Government of Nashville and Davidson County, et al.
Plaintiffs, the guardians and grandparents of a fourth-grader at Amqui Elementary School filed this wrongful death action against the Metropolitan Government of Nashville and Davidson County. While at school, the decedent became ill. After school employees cared for him for a period of time, his condition worsened; school employees then called 911 and performed CPR while awaiting for the paramedics. Tragically, the child died on the way to the emergency room. Plaintiffs allege that Defendant did not properly train or supervise its school employees and that Defendant's employees were negligent in failing to secure proper medical care. The trial court summarily dismissed the action upon findings that Defendant had not breached a duty to the decedent and that its actions were not the proximate cause of decedent's death. Plaintiffs appeal. We reverse finding there are genuine issues of material fact that preclude summary judgment. |
Davidson | Court of Appeals | |
John Steven Davidson, Jr. v. Mary Molteni Davidson
Wife appeals the trial court's designation of Husband as primary residential parent of the parties' two children and reduction of Wife's parenting time with one of the children. We vacate the trial court orders at issue and remand the case for further proceedings. |
Davidson | Court of Appeals | |
Valenti Mid-South Management, LLC v. Reagan Farr, Commissioner of Revenue, State of Tennessee
Plaintiff filed suit in chancery court to challenge an assessment of Plaintiff's franchise tax liability by the Department of Revenue. The chancery court upheld the assessment. We affirm. |
Davidson | Court of Appeals | |
Oscar Paul Guess, III v. City of Manchester, a Tennessee Municipality, et al.
Discharged city employee filed a petition for writ of certiorari challenging his termination by the city. The trial court remanded the case to the board of mayor and aldermen based upon the court's determination that there was evidence of bias on the part of one alderman and that the record did not allow the court to determine the grounds relied upon by the board in terminating the employee. We have determined that the trial court erred in remanding this case. The city employee waived the issue of possible bias on the part of one alderman by failing to raise it at any time during the hearing before the board. Moreover, the board was not required to make specific findings on the reasons for its decision. |
Coffee | Court of Appeals | |
Cascade Ophio, Inc., DBA C.W. Ohio, Inc. vs. Modern Machine Corporation, A Tennessee Corporation, et al
Machine Tool & Die, Inc., now known as CMTD, Inc. ("the Seller"), and Modern Machine Corporation, a Tennessee corporation ("Modern Tennessee" or "the Buyer"), regarding a machine that the Seller had agreed to build for the Customer. After the Seller agreed to build the machine, the Seller entered into an agreement with the Buyer to sell its assets to the Buyer, including the Seller's contract to build the machine for the Customer. The machine was never built, prompting this lawsuit. Following a bench trial, the court held that the Seller and Buyer were liable to the Customer for the down payment made on the machine purchase. The court further held that the Buyer was liable to the Customer under the Tennessee Consumer Protection Act ("the TCPA"), trebled the Customer's damages, and held the Buyer responsible for the attorney's fees of the Customer. The court also held the Buyer liable to indemnify the Seller, including the attorney's fees of the Seller. The court also pierced the corporate veil of the Buyer and held parties related to the Buyer jointly liable with the Buyer. The Buyer and its related parties appeal. We reverse in part and modify in part. Except as modified or reversed, the judgment is affirmed. Case remanded. |
Bradley | Court of Appeals | |
Donna Shedd, et al. v. Community Health Systems, Inc., et al.
Father seeks to intervene in the wrongful death action filed by Mother for the death of the parties' daughter. The trial court found Father waived his right to intervene through inaction. We find the trial court abused its discretion in declaring Father's motion untimely, and therefore, we vacate the order denying Father's motion to intervene, and we remand for further proceedings. |
Weakley | Court of Appeals | |
Robert Edwards, et al. v. City of Memphis, et al.
Appellants, police officers with the Memphis Police Department, filed suit against the City and the Director of Police Services, claiming that the City violated Memphis City Charter Section 67 by failing to promote the officers to the rank of Captain after thirty years of service. The trial court entered summary judgment in favor of the City, and the officers appeal. Finding that the relevant case law clearly establishes: (1) that Appellants have no legal right to work as Captains, a rank that no longer exists; (2) that the City's decision to abolish this rank for operational purposes was not discriminatory; and (3) that Section 67 of the City Charter is a retirement tool and not a guarantee of employment, we affirm. |
Shelby | Court of Appeals | |
Kevin Millen v. Shelby County Sheriff's Department
After unsuccessfully appealing his worker's compensation lawsuit, appellant was assessed appellate court costs. A Fieri Facias/Writ of Execution was executed, and appellant's car was attached and sold at a sheriff's sale. Appellant then filed a lawsuit against the sheriff's office claiming he had been carjacked. The trial court dismissed appellant's complaint and we affirm. |
Shelby | Court of Appeals | |
Anne S. Phillips vs. Anderson County, Tennessee
This appeal involves a retaliatory discharge claim. Employee claims that she was discharged after reporting her supervisor's unlawful activities. Employer denied that employee was discharged, claimed that she quit, and demonstrated that the State terminated the grant funding the program overseen by employee. A jury trial commenced, and at the close of all proof, employer moved for a directed verdict. The trial court granted the motion for directed verdict and found that employee failed to prove a causal link between her discharge and her decision to engage in a protected activity. Employee appeals. We affirm. |
Anderson | Court of Appeals | |
In Re: Pauline M., Stephen M., and Rachael M.
This is a termination of parental rights case. The trial court terminated both parents' rights to the children on grounds of: (1) abandonment by failure to provide a suitable home pursuant to Tenn. Code Ann. _ 36-1-102(1)(A)(ii); and (2)persistence of conditions as set out at Tenn. Code Ann. _ 36-1-113(g)(3). The trial court also terminated Father's parental rights on the additional ground of abandonment by failure to support pursuant to Tenn. Code Ann. _ 36-102(1)(A)(i), and Mother's parental rights on the additional ground of mental incompetence pursuant to Tenn. Code Ann. _ 36-1-113 (g)(8)(B). Finding clear and convincing evidence in the record to support each of these grounds, as well as clear and convincing evidence that termination of Mother's and Father's parental rights is in the best interests of the children, we affirm. |
Greene | Court of Appeals | |
Cydnie B. O'Rourke v. James P. O'Rourke
In the last proceeding in this protracted post-divorce litigation, the trial court transferred custody, or primary residential placement, of three children of a divorced couple from the mother to the father. In this consolidated appeal, the mother claims that the trial court erred in a number of ways. However, a number of her arguments relate to orders or actions that have been rendered moot by the final order, including her challenges to the use of a"parenting coordinator." As to the final order modifying residential placement, we hold that the trial court did not err in declining to use Tenn. Code Ann. _ 36-6-406 to limit the father's visitation with the children and that the court acted within its discretion in limiting the testimony of Mother's expert witness as a discovery sanction. We also hold that the trial court's award of $330,000 in attorney fees to the father was not error. We affirm the trial court. |
Williamson | Court of Appeals | |
Joshua Todd Daniels vs. Kevin Grimac, et al
This is an appeal from a judgment summarily holding attorney Herbert S. Moncier in direct, criminal contempt of court. Because the trial court improperly exercised its summary contempt authority several weeks after the cited conduct occurred, we vacate its judgment and remand this case for additional proceedings. |
Knox | Court of Appeals | |
International Market and Restaurant, Inc., et al. v. Belmont University, et al.
International Market and Restaurant, Inc. and Patti Myint, owner of the P.M. Café, sued the Belmont University and the Metropolitan Government because representatives of Belmont and the United States Secret Service informed the plaintiffs that the streets and sidewalks around plaintiffs’ establishments would be closed for security purposes the evening of the Presidential debate at Belmont pursuant to a plan developed by the Secret Service. The plaintiffs closed the businesses that evening; however, the sidewalks were not closed. The plaintiffs claim that they lost revenue by closing and seek compensation based on negligent representation, constructive fraud and breach of the indemnity agreement between Belmont and Metro. The trial court granted Belmont’s motion for summary judgment and Metro’s motion to dismiss. Plaintiffs appealed. We affirm. |
Davidson | Court of Appeals | |
Regions Bank, Successor-In-Interest to Union Planters Bank v. Lost Cove Cabins and Campgrounds, Inc., et al.
The trial court entered judgment against the borrowers and guarantors on two promissory notes. On appeal, the defendants argue that the trial court erred in striking their jury demand and that they are entitled to relief under an alleged written commitment for permanent financing or under various equitable theories. We find the defendants' arguments to be without merit and affirm the decision of the trial court. |
Van Buren | Court of Appeals | |
Terrance Lowdermilk v. Tennessee Department of Safety
Petitioner filed this petition for judicial review in 2009 to challenge the propriety of the seizure of $5,518 in cash following the Tennessee Bureau of Investigation executing a search warrant on Petitioner’s residence in May of 2001. A notice of seizure was served on Petitioner; also a forfeiture warrant was issued and mailed to Petitioner at his residence. The Department of Safety subsequently entered a final administrative order forfeiting the money. When Petitioner filed this action almost eight years later, the trial court dismissed the petition on the ground that it lacked subject matter jurisdiction because the petition was not timely filed. The trial court dismissed the action. We affirm. |
Davidson | Court of Appeals | |
Carol L. Brandon v. Williamson Medical Center, et al.
Plaintiff timely filed a complaint for medical malpractice, but failed to file a certificate of good faith within ninety days as required. Defendants filed a motion to dismiss, and plaintiff subsequently filed a motion for enlargement pursuant to Rule 6.02 and a proposed certificate of good faith. The trial court granted defendants' motion, finding plaintiff had failed to demonstrate "good cause" for failing to file the required certificate. Because we find that plaintiff has failed to demonstrate either "good cause" or "excusable neglect," we affirm the trial court's dismissal of plaintiff's complaint. |
Williamson | Court of Appeals | |
Wade Phelps/Phelps Harrington Construction Co., Inc. v. C & C Construction Co., LLC, et al.
Contractor agreed to build duplex for property owner, with plaintiff providing construction financing. At closing, contractor was paid, but contractor did not pay plaintiff as agreed. Plaintiff sued property owner, contractor, and bank. We previously affirmed the trial court's grant of summary judgment to the bank, finding that contractor and plaintiff were in a joint venture, such that payment to contractor was payment to plaintiff. Property owner then moved for summary judgment, which the trial court granted. Because we find no separate agreement between property owner and plaintiff requiring repayment directly to plaintiff, plaintiff's cause of action against property owner is precluded, and the trial court's grant of summary judgment is affirmed. |
Davidson | Court of Appeals | |
Jennifer Bonner Givens, et al. v. Mark S. Josovitz, et al.
After an elevated PSA test in October 2000, Dr. Josovitz referred Decedent to a urologist. After an even higher PSA level on retest, the urologist performed a biopsy, which was benign. Despite being informed of his need for additional PSA testing, decedent did not return to the urologist, and, despite routinely seeing decedent for other health issues, Dr. Josovitz did not again discuss the need for repeat testing with decedent until 2004. In May 2004, decedent was diagnosed with advanced prostate cancer, and he died in September 2005. Plaintiffs' expert testified that decedent's prostate cancer must have been diagnosed by December 2001 in order for decedent to survive. However, it is undisputed that the defendants had no knowledge of his prostate cancer by that time. Plaintiffs filed suit in this case beyond the three-year statute of repose for medical malpractice. Because they are unable to prove defendants had knowledge of decedent's prostate cancer, fraudulent concealment is unavailable to toll the statute of repose. Accordingly, we find that plaintiffs' wrongful death claim is barred by the statute of repose and further that plaintiffs are not entitled to recover damages for pain and suffering. Summary judgment is granted to defendants, and the trial court's dismissal of plaintiffs' claim is affirmed. |
Rutherford | Court of Appeals | |
Clarence E. Miller vs. Marian N. Miller
Husband filed for divorce after twenty-five years of marriage alleging inappropriate marital conduct as grounds for divorce. Wife filed a counter-claim for divorce also alleging inappropriate marital conduct. After a bench trial, the court found that the parties had lived separately for at least 10 years; awarded a divorce to Husband; and awarded alimony in futuro to Wife. Wife appeals challenging the trial court's award of a divorce to Husband, the division of the marital property, and the award of alimony. Upon review of the record, we affirm. |
Anderson | Court of Appeals | |
Arthur B. Roberts, et al vs. Robert Bailey, et al
Robert Bailey, Lisa Bailey Dishner, and Richard Neal Bailey ("the Baileys") were sued by Arthur B. Roberts and Tia Roberts with regard to a boundary line dispute. The Baileys filed a third party complaint against Dale Littleton, Alice Littleton, Kimber Littleton, Mark Lee Littleton ("the Littletons"), and Charlotte Dutton seeking to quiet title to real property, including the property involved in the boundary line dispute. The Baileys filed a motion for partial summary judgment against the Littletons. After a hearing, the trial court entered an order denying the motion for summary judgment and certifying the judgment as final pursuant to Tenn. R. Civ. P. 54.02. The Baileys appeal to this Court. We affirm. |
Loudon | Court of Appeals | |
Charles E. Foust, Jr. v. Larry E. Metcalf, et al.
Plaintiff filed this action to quiet title to a strip of land along a former railroad line. Defendant, an adjacent landowner, asserts that plaintiff has no interest in the disputed property because the deed that purportedly conveyed the property to plaintiff was champertous and void due to the fact defendant was adversely possessing the property under color of title at the time of the deed. The trial court ruled in favor of plaintiff, finding that defendant failed to establish that plaintiff's deed was champertous or that defendant had acquired title by seven years of adverse possession under color of title for thirty years. We have determined the trial court applied an erroneous legal standard by holding that defendant had to prove seven years of adverse possession to establish that plaintiff's deed was champertous. Instead, defendant need only prove that he was in adverse possession at the time of the deed to plaintiff. Defendant established he was in adverse possession under color of title of the disputed property at the time of plaintiff's deed; accordingly, the deed is champertous. Champertous deeds are void; therefore, plaintiff never acquired a legal interest in the disputed property. We reverse the judgment of the trial court quieting title in favor of plaintiff. As for defendant's prayer that he be declared the owner of the disputed property, we have determined that an indispensable party is missing, the grantor of the deed to plaintiff; therefore, we make no ruling concerning defendant's claim that he owns the property by adverse possession of at least seven continuous years under color of title pursuant to Tenn. Code Ann. _ 28-2-105. |
Montgomery | Court of Appeals | |
Beverly Angel v. Diane Nixon
The paternal grandmother of a three-year-old child filed a petition seeking visitation pursuant to Tenn. Code Ann. _ 36-6-306. The grandmother contended that the child's mother prevented the grandmother from seeing the child following the death of the child's father. Grandmother also contended that she had a significant existing relationship with the child and that the loss of this relationship was likely to cause severe emotional harm to the child. The trial court granted the petition and awarded the grandmother three hours of visitation every third Sunday at the grandmother's home. The mother appealed, arguing that the trial court erred in making the award to the grandmother, because the mother did not oppose visitation. Alternatively, she argued that the proof did not support a finding that the grandmother had a significant existing relationship with the child or that the child would be severely emotionally harmed from severance of that relationship. We affirm the trial court's determination that the grandmother is entitled to three hours of visitation every third Sunday. |
Smith | Court of Appeals | |
In the Matter of: Michael C. M., Shania M. J., and Jania M. J.
The trial court terminated Father's parental rights upon a finding of abandonment and upon determining termination was in the best interests of the children. Father appeals. We affirm. |
Shelby | Court of Appeals |
