Peggy Dobbins, As Conservator of the Estate of Frank Bailey, Jr., v. Gerald S. Green, et al.
This is a Tennessee Rule of Civil Procedure 25.01 case. Following plaintiff’s death and the filing of a suggestion of death in the trial court, no motion to substitute party was made within the ninety day time period set out in Rule 25.01. The trial court determined that the failure to file a motion for substitution of party was not the result of excusable neglect and granted the Rule 25.01 motion to dismiss the lawsuit. The court subsequently also granted the plaintiff’s motion for voluntary dismissal under Tennessee Rule of Civil Procedure 41.01. We conclude that, in the absence of excusable neglect, failure to comply with Rule 25.01 requires mandatory dismissal of the case with prejudice and the lawsuit may not thereafter be revived by the filing of a motion for voluntary dismissal. Reversed and remanded. |
Shelby | Court of Appeals | |
In Re: Estate of Danny Keith Ellis
This case involves a dispute between the administrators of the estate of a man who died intestate and the decedent’s’s former wife over the legal ownership of funds that were held in jointly titled accounts at two banking institutions. After the man’s death, his former wife withdrew almost all the funds from the accounts. The administrators asked for a declaratory judgment that the funds belonged to the estate on the basis that the husband and wife had entered into a Marital Dissolution Agreement (MDA) before their divorce which designated those funds as belonging solely to the husband. However, the husband never changed the titles on those accounts, and the ex-wife insisted that the unaltered designation of joint ownership conclusively established her right to the funds after her ex-husband’s death. After a hearing, the trial court ruled that the bank accounts were the sole property of the estate, and the former wife was obligated to return the funds. The trial court reasoned that because the MDA was approved by the court and was binding on the parties, it amounted to an amendment to the contract that the parties had created when the accounts were established. We affirm. |
Davidson | Court of Appeals | |
Barry Russell, et al. v. Hendersonville Utility District
Property owners sued utility district for damages and an injunction as a result of the excessive use of an easement across the property owners’ land by the district’s assignees. The utility district denied any wrongdoing and moved the trial court to dismiss the complaint. The trial court dismissed the complaint for failing to state a cause of action for which relief can be granted. The property owners appealed. We conclude the trial court erred in dismissing the property owners’ complaint because the property owners have stated a cause of action for which relief can be granted. We therefore reverse the trial court’s judgment and remand the case for further proceedings. |
Sumner | Court of Appeals | |
Joe Clyde Tubwell v. City of Memphis, et al.
This is an appeal from the circuit court’s dismissal of Appellant’s appeal from the Memphis City Court. Appellant filed a pauper’s oath in the circuit court, but did not file a proper bond or oath in the city court as required to perfect his appeal. Accordingly, the circuit court did not gain jurisdiction over the matter and, thus, properly dismissed the appeal. Affirmed and remanded. |
Shelby | Court of Appeals | |
Gene B. Cochran, et al. v. City of Memphis, Tennessee
The South Cordova Area was annexed in November 2001. In December 2001, Plaintiffs timely filed a complaint challenging the South Cordova Area annexation. In 2011, however, the complaint was dismissed “without prejudice” for failure to prosecute. Thereafter, Plaintiffs filed a second complaint challenging annexation, but the trial court dismissed the complaint for failure to state a claim. We affirm. |
Shelby | Court of Appeals | |
Hill Boren, P.C. v. Paty, Rymer and Ulin, P.C. and James Eric Hamm
This appeal involves a dispute over an attorney’s fee involving two law firms and their client. The parties originally entered into a contract whereby both law firms would jointly represent the client as a plaintiff in a personal injury suit. Two years later, the client discharged one of the law firms. The other firm continued to represent the client, and when the case settled over a year later, the remaining firm retained the entire contingency fee. The discharged firm sued the client and the other firm, alleging that it was entitled to a share of the contingency fee and asserting numerous causes of action. The defendants claimed that the discharged firm was limited to quantum meruit. The trial court granted summary judgment to the defendants on all claims. The plaintiff law firm appeals. We affirm. |
Madison | Court of Appeals | |
In Re Angel S. F. et al.
The Juvenile Court of Putnam County terminated the parental rights of both parents to their |
Putnam | Court of Appeals | |
Khoury L. Kinnard v. Tennessee Department of Correction, et al.
Certiorari proceeding in which an inmate sought review of disciplinary board proceeding finding him guilty of possession/use of a cell phone. The trial court granted motion to dismiss the proceeding on the ground that it sought to challenge the correctness of the disciplinary board’s decision. Finding no error, we affirm the decision of the trial court. |
Hickman | Court of Appeals | |
David D. Clark, Jr. v. Ashlyn Cooper
This appeal arises from a dispute involving custody of a child. David D. Clark, Jr. (“Father”) and Ashlyn Cooper (“Mother”) voluntarily gave custody of their minor child (“the Child”) to the Child’s paternal grandparents. Mother later sought to alter custody of the Child through the Juvenile Court for Jefferson County (“the Juvenile Court”). The Juvenile Court denied Mother’s motions. Mother filed a motion for a new hearing, which also was denied. The Juvenile Court, when denying Mother’s motion for a new hearing, described the matter as a dependency case despite earlier classifying it as a custody case. Mother appealed to the Circuit Court for Jefferson County (“the Trial Court”), which denied Mother’s appeal. The Trial Court held that the action was, in fact, a custody matter, and therefore, Mother’s appeal from Juvenile Court, if any, should have been to the Tennessee Court of Appeals. Mother appeals. We hold that, while the Trial Court correctly held that this was a custody matter and that it therefore lacked subject matter jurisdiction to hear Mother’s appeal, it should have transferred her appeal to this Court rather than simply deny the appeal. |
Jefferson | Court of Appeals | |
In Re Kaylee F. et al.
In this action to terminate the parental rights of both parents to their three minor children, the trial court found that the petitioners, the paternal grandmother and her husband, had proven the grounds of persistence of conditions, abandonment for failure to visit, and abandonment for failure to support the children, and that termination of both parents’ rights was in the children’s best interests. Mother appealed the termination of her parental rights; Father did not. Finding no error, we affirm. |
Smith | Court of Appeals | |
George Ridenour v. Darrell Carman et al.
The plaintiff, an employee of a real estate and auction company, sustained serious injuries while assisting the managing broker of the company to move cattle panels on the managing broker’s personal farm.The plaintiff filed a claim for workers’compensation benefits against the real estate and auction company and its insurer. The plaintiff also filed a common law tort action against the managing broker and the broker’s son, who was called to assist after the injury occurred. The workers’ compensation action was settled. Pursuant to the court approved settlement agreement, the employee released and discharged the real estate and auction company and its insurer, as well as their subsidiaries, affiliates, officers, directors, employees, agents and representatives “from any and all further liability and indemnity, under the terms and provisions of the Workers’ Compensation Law of the State of Tennessee, at common law or otherwise . . . .” After the workers’ compensation action was settled, the managing broker and his son filed a joint motion for summary judgment to dismiss the plaintiff’s tort claims on the grounds they were afforded immunity under the Workers’ Compensation Law, specifically Tennessee Code Annotated § 50-6-108(a), and that the plaintiff gave the defendants a full release in the workers’ compensation settlement agreement. The trial court summarily dismissed all claims against the defendants on both the statutory ground and the release. We affirm the dismissal of the tort claims against the employer’s managing broker. However, we reverse the dismissal of the claims against the managing broker’s son because the son was not an affiliate,officer,director,employee,agent or representative of the employer when the plaintiff sustained his injuries and he does not come within the terms of the release. Therefore, the plaintiff’s claims against the son are reinstated and remanded for further proceedings. |
Trousdale | Court of Appeals | |
In Re Kaleb N. F. - Amanda Kay D. N. and Waylon Ray N. v. Christy Shantae C. and Michael L.
This appeal involves the termination of parental rights and adoption. In August 2007, the Department of Children’s Services visited the home of the respondent mother and her 11month-old son based on a referral. After it determined that the mother’s husband had engaged in domestic abuse and that the mother was using illegal drugs, the Department told the mother that her son would be taken into state custody if she did not immediately find someone to care for him. The mother’s neighbor, the petitioner in this case, agreed to take temporary custody of the mother’s son. Even though the child was not actually taken into state custody, but was “safety-placed” with the petitioner neighbor, the Department developed a Family Services Plan, assigning certain tasks to the mother for her to regain custody of her son. After about ten months, before the mother had completed the assigned tasks, the Department closed the mother’s case and ceased any involvement with the child or the mother. The child remained in the custody of the petitioner neighbor and her husband, and the mother visited the child each week. The mother brought the child items such as diapers, milk, and food, but made no monetary payments to the neighbor. When the child was three years old, the petitioner and her husband filed this petition to terminate the mother’s parental rights and adopt the child. After a trial, the trial court terminated the mother’s parental rights based on failure to comply with the FamilyServices Plan and failure to support. The mother now appeals. We reverse the termination of the mother’s parental rights. |
Sumner | Court of Appeals | |
Michael Ray Adkisson v. Tonya Suzette Adkisson
After a 2006 divorce, both parties petitioned the trial court in 2009 for a modification of the parenting plan and to hold the other parent in contempt. The trial court slightly modified the parent visitation schedule and held the father in contempt for violating the parenting plan’s provisions on spring break and medical expense reimbursement. On appeal the father asserts that the trial court erred in the contempt rulings, in not giving him primary custody or substantially equal parenting time and in not holding the mother in contempt. We reverse the father’s contempt for his actions during spring break. In all other respects we affirm the trial court’s judgment. |
Blount | Court of Appeals | |
American Express Centurion Bank v. John Lowrey
The trial court dismissed this case on the ground that the plaintiff credit card company failed to timely respond to discovery requests. We reverse, concluding that the trial court erred in dismissing the case without sufficient evidence of contumacious conduct on behalf of the plaintiff. |
Knox | Court of Appeals | |
In Re: Estefani Y.M., et al.
This is an appeal by Elvira N. M. from an order terminating her parental rights to her two minor children, Estefani Y. M. and Vanessa N. M. The order terminating the appellant’s parental rights was entered on October 15, 2012. The Notice of Appeal was not filed until November 15, 2012, more than (30) days from the date of entry of the October 15, 2012 order. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal. |
Hamblen | Court of Appeals | |
A. Julian Ahler v. Walter Stephen Stewart, et al.
This is an appeal from an order transferring the action below from the Circuit Court for Roane County to the Chancery Court for Roane County. Because the order appealed from does not resolve any issues raised in the proceedings but merely transfers those claims to another court, we dismiss this appeal for lack of a final judgment. |
Roane | Court of Appeals | |
In the Matter of Cheyenne E. H. and Robert L. H.
Mother’s parental rights to two children were terminated on the grounds of abandonment by failure to support, substantial non-compliance with permanency plans, and persistence of conditions. The court also concluded that termination of Mother’s rights was in the best interests of the children. Mother appeals, contending that the evidence does not support the statutory grounds or that termination is in the children’s best interest and asserting that the Departmentof Children’s Services did not make reasonable efforts to reunify the family. We affirm the judgment terminating her rights. |
Lawrence | Court of Appeals | |
In Re: The Adoption of a male child Z.J.D.
Mother and Stepfather filed a petition to terminate Father’s rights to his fourteen year old son to allow Stepfather to adopt the child. Mother and Stepfather asserted Father abandoned the child because his visits constitute nothing more than “token visitation.” Father lives in Massachusetts and usually visits the child once a year. Father’s most recent visit was one month before Mother and Stepfather filed their petition. The trial court denied the petition and we affirm the trial court’s judgment. Father presented evidence that he has tried to communicate and visit more with the child but that Mother has thwarted his efforts. Based on the particular facts of this case we conclude Father has not abandoned the child by failing to visit, or engaging in “token visitation” as set forth in Tenn. Code Ann. § 36-1-102, in the four months preceding the filing of the petition for termination. |
Cheatham | Court of Appeals | |
Metropolitan Nashville Education Association and James Fuller v. The Metropolitan Board of Public Education
A teacher at Overton High School, who was also a sports coach, challenged the nonrenewal of his coaching contract, claiming the nonrenewal was not in accordance with Tenn. Code Ann. § 49-5-510. The trial court found the contract was not renewed because the teacher refused to follow the guidelines for handling money collected at the sporting events and that the former coach had not met his burden of proof under the statute. We conclude the evidence supports the trial court’s ruling and affirm the judgment. |
Davidson | Court of Appeals | |
Island Properties Associates v. The Reaves Firm, Inc., d/b/a Reaves, Sweeney, and Marcum, et al
This is a surveyor negligence case. Appellee developer filed suit against Appellant surveyor, claiming two distinct acts of negligence on surveyor’s part. The first claim of negligence involved an error allegedly made by surveyor in a 1993 survey. The second claim of negligence involved Appellee’s claim that, upon discovering the 1993 survey error in a subsequent survey that it performed in 2002, surveyor had a duty to inform Appellee of the error. We conclude that any negligence arising from the 1993 survey claim is barred by the statute of repose, Tennessee Code Annotated Section 28-3-114(a). Despite Appellant’s numerous motions to exclude this cause of action as time barred, the trial court ultimately allowed the 1993 negligent survey claim to be tried to the jury. The jury was then instructed as to both claims of negligence and the jury returned a verdict, wherein it found Appellant surveyor to be forty percent at fault and awarded damages in favor of Appellee. Appellant surveyor appeals. Because the jury was improperly instructed and was allowed to consider the time-barred claim of negligence, we conclude that the jury was mislead by the instructions. Accordingly, we vacate the judgment on the jury verdict and remand for a new trial. Vacated and remanded. |
Shelby | Court of Appeals | |
Kenneth Brown, Sandra McCulley, and Shawn McCulley v. Samir Shtaya
In this case, we address the bond requirements for an appeal from General Sessions Court to Circuit Court. The plaintiff property owners were leasing commercial space to the defendant. The plaintiffs filed a forcible entry and detainer action against the defendant in General Sessions Court. During the pendency of the proceedings, the plaintiffs allegedly locked the defendant out of the property prematurely, causing property damage to the defendant. The defendant then filed a cross-claim in the original General Sessions Court lawsuit for unlawful ouster. The defendant also filed a separate action in the General Sessions Court based on the same allegations of unlawful ouster. The General Sessions Court consolidated the two cases for trial. Ultimately, the General Sessions Court held in favor of the plaintiffs on their forcible entry and detainer claim and awarded attorney fees under the lease. As to the defendant’s cross-claim and separate lawsuit based on unlawful ouster, the General Sessions Court found in favor of the defendant and awarded damages. The plaintiffs sought a de novo appeal to Circuit Court of the rulings in favor of the defendant on his cross-claim and separate claim; the defendant appealed the Circuit Court’s ruling in favor of the plaintiffs. In doing so, all of the appellants — the plaintiffs and the defendant — filed notices of appeal and paid $211.50 to the General Sessions Court clerk, pursuant to T.C.A. § 8-21-401(b)(1)(C)(i). None of the appellants filed any further bond at that time. The defendant filed a motion to dismiss the plaintiffs’ appeals, arguing that the Circuit Court lacked subject-matter jurisdiction because they had not complied with the appeal-bond requirement in T.C.A. § 27-5-103. The Circuit Court granted the motion and dismissed the plaintiffs’ appeals. The Circuit Court also dismissed the defendant’s appeal sua sponte based on the same reasoning. The plaintiffs now appeal to this Court. We reverse the Circuit Court’s dismissal of the plaintiffs’ appeals in light of our recent decision Bernatsky v. Designer Baths & Kitchens, LLC, No. W2012-00803-COA-R3-CV, 2013 WL 593911 (Tenn. Ct. App. Feb. 15, 2013), and remand for further proceedings. |
Shelby | Court of Appeals | |
Kenneth Brown, Sandra McCulley, and Shawn McCulley v. Samir Shtaya - Dissenting
In this case, the majority concludes that the plaintiffs’ payment of $211.50 to the General Sessions Court clerk satisfied the requirements of Tennessee Code Annotated section 27-5-103, and therefore, that the Circuit Court erred in dismissing their appeal for lack of subject matter jurisdiction. In reaching this conclusion, the majority relies upon the recent case of Bernatsky v. Designer Baths & Kitchens, LLC, No. W2012-00803-COA-R3-CV, 2013 WL 593911 (Tenn. Ct. App. Feb. 15, 2013). Because I believe Bernatsky is based upon a flawed premise, I respectfully dissent. |
Shelby | Court of Appeals | |
In Re Estate of Frieda Lindy Freedman Harold Freedman, As Executor v. Anita Taradash
A beneficiary of the decedent’s estate contends the Executor should be held personally liable for paying two debts of the decedent for which no claim was filed pursuant to Tennessee Code Annotated § 30-2-307. The Executor insists that Tennessee Code Annotated § 30-2318(b) afforded him the discretion to pay debts of the decedent because the estate was solvent and the time in which the claims could have been filed had not expired. The probate court ruled in favor of the Executor, finding the payment of the debts was authorized pursuant to Tennessee Code Annotated § 30-2-318(b). We affirm. |
Davidson | Court of Appeals | |
Jeremy Dathan Port v. Veronica L. Hatton
The trial court granted the parties a divorce, named the father as the primary residential parent of their one and a half year old child, and permitted him to return with the child to North Carolina, where both parties originally came from and where their families still resided. The mother was granted three days of supervised visitation with the child each month in North Carolina. She argues on appeal that the trial court’s decision was flawed because the court failed to analyze the best interest of the child in accordance with the appropriate statutory factors. She also argues that by allowing Father to take the child to North Carolina and limiting her visitation so severely, the court deprived her of her right to maintain the parent-child relationship, and that its actions were inconsistent with case law stating that “the least restrictive visitation limits are favored in order to encourage the parent-child relationship.” We affirm the trialcourt’s designation of the father as the primary residential parent, and its finding that it was in the child’s best interest that the father be permitted to relocate with the child. We also affirm the parenting plan. |
Rutherford | Court of Appeals | |
William H. Richardson et al. v. Bates Show Sales Staff, inc. d/b/a Bates RV Exchange
Plaintiffs appeal the dismissal of their action for breach of contract, breach of express warranty, breach of implied warranty, violation of the Tennessee Consumer Protection Act, and fraudulent misrepresentation arising out of the purchase of a recreational vehicle from Defendant, a business located and incorporated in the State of Florida. The trial court dismissed the action on the finding that the court lacked personal jurisdiction over Defendant because the corporation had not purposely availed itself of doing business in Tennessee and did not have sufficient contacts with Tennessee. The trial court further found that the choice of venue clause in the purchase contract between the parties was enforceable and, thus, the proper venue for the action was Florida. Plaintiffs appealed arguing that the court may exercise personal jurisdiction over Defendant. We affirm the finding that the trial court lacks personal jurisdiction over Defendant as Plaintiffs did not establish the prima facie case of jurisdiction. |
Davidson | Court of Appeals |
