Hong Samouth (Sam) Rajvongs v. Dr. Anthony Wright
A patient who alleged that he had been negligently injured by his podiatrist filed a complaint against him for malpractice, and then voluntary dismissed the complaint without prejudice. Less than a year later, he furnished the defendant podiatrist with the sixty day notice of potential claim required by a recently enacted statute, Tenn. Code Ann. § 29-26121(a). He subsequently refiled his complaint in reliance on his rights under the saving statute, Tenn. Code Ann. § 28-1-105. The defendant filed a motion for summary judgment, arguing that the complaint was time-barred under the saving statute because it was filed more than one year after the dismissal of the original complaint. The plaintiff contended, however, that he was entitled to the benefit of Tenn. Code Ann. § 29-26-121(c), which extends the statute of limitations on medical malpractice claims by 120 days if the plaintiff has complied with the sixty day notice requirement. The defendant responded by arguing that Tenn. Code Ann. § 29-26-121(c) does not apply to complaints filed under the saving statute. The trial court dismissed the defendant’s motion for summary judgment, but allowed him to file an application for interlocutory appeal because of the novelty of the legal question involved. After careful consideration of the relevant statutes, we hold that Tenn. Code Ann. § 29-26121(c) does apply to the saving statute, and we affirm. |
Rutherford | Court of Appeals | |
Beach Community Bank v. Edward A. Labry, III, et al.
This case involves personal guaranties on a loan to purchase real estate. The Appellants entered into a partnership for the purpose of buying and selling real estate. The partnership obtained a loan in the amount of $2,611,000.00 to purchase real property located in Florida. The Appellants each signed a personal guaranty on the loan in favor of the Appellee bank. By the express terms of the guaranties, the Appellants guaranteed “up to a principle amount of $795,600.00.” The partnership defaulted on the loan and the bank sued to enforce the guaranties. The Appellants answered that the guaranties were joint and several and that, because they were only 30% owners of the partnership, they could only be liable for 30% of the amount of the defaulted loan. In addition, the Appellants argued that the bank breached the covenant of good faith in failing to foreclose on the subject property. The trial court found that, under Florida law, the guaranties were not ambiguous, but were separate guaranties holding each Appellant separately liable for $795,600.00. The trial court also awarded interest on the entire debt. We affirm the trial court’s determination that the guaranties unambiguously require each Appellant to be separately liable for $795,600.00, but hold that the term regarding interest is ambiguous. Accordingly, we reverse the grant of summary judgment on this issue and remand to the trial court for the consideration of parole evidence regarding the amount of interest and fees chargeable to the Appellants. Affirmed in part, reversed in part and remanded. |
Shelby | Court of Appeals | |
Jennifer Lee Kailar Cooper v. Christopher Aaron Brown
Upon the Court's inquiry as to whether the order appealed was a final judgment, Appellant filed an application for an extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. Although we must dismiss Appellant's Rule 3 appeal, we grant Appellant's Rule 10 application and vacate in part the trial court's order of October 26, 2011, and remand for further proceedings. |
Shelby | Court of Appeals | |
In The Matter of: Jai'Shaundria D.L.R.
A mother appeals the termination of her parental rights to one child. The trial court found two grounds for termination, abandonment and persistence of conditions leading to the child’s removal from the mother’s home. The finding of abandonment was based on the mother’s incarceration at the time of the filing of the petition to terminate and because the mother engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child, as provided in Tennessee Code Annotated § 36-1-102(1)(A)(iv). The trial court also found termination was in the child’s best interest due to the fact that the mother lacked a meaningful relationship with the child, that the mother failed to make adjustments to her home and lifestyle to make it safe for a child, and that the child was happy and healthy in her foster home of over two years such that removal would have a detrimental impact on the child’s emotional and psychological condition. We affirm. |
Davidson | Court of Appeals | |
Middle Tennessee State University v. Tracy Sorrell Simmons a/k/a Tray Simmons
A former student who obtained a student loan from Middle Tennessee State University appeals the judgment of the trial court holding him liable on the student loan, including interest that accrued thereon, costs of collection, attorney’s fees and discretionary costs. Finding no error, we affirm. |
Davidson | Court of Appeals | |
In The Matter of Lyle L. Lawton - Stephen Lawton v. Lyle L. Lawton
This appeal involves a conservatorship. After the parties announced in open court that they had reached an agreement on a partial conservatorship, the appellant ward stood up in court and asked to speak. The hearing was adjourned and subsequently the partial conservatorship was ordered in accordance with the agreement. The ward now appeals, arguing inter alia that the trial court erred in failing to hold an evidentiary hearing, failing to make the requisite findings, and failing to hear from the ward. We find no error and affirm. |
Coffee | Court of Appeals | |
Sandi D. Jackson v. Mitchell B. Lanphere
In a previous appeal, this court vacated and remanded the trial court’s order dismissing a petition for an order of protection based upon the trial court’s failure to make findings of fact and conclusions of law as required by Tenn. R. Civ. P. 41.02. On remand, the trial court issued an order making the requisite findings of fact and conclusions of law and again dismissed the petition. On appeal, the petitioner argues that the trial court applied an incorrect standard of proof and thereby abused its discretion. We find no merit in this argument. Therefore, we affirm the decision of the trial court. |
Sumner | Court of Appeals | |
Song & Song Corporation, and Jin Y. "Jim" Song, Individually v. Fine Art Construction Company, LLC, et al.
Property owner hired a general contractor to perform construction work on a commercial building. The parties subsequently discovered that when the building was originally constructed, there were no fire dampers installed in the ductwork. The contractor performed the additional work necessary to install the missing fire dampers, but when the work was completed, the property owner refused to pay the amount invoiced by the contractor for the additional work. Both parties asserted that the other had breached the contract. Following a two-day bench trial, the trial court ruled in favor of the contractor and awarded her a judgment for the unpaid balance and other damages. The property owner appeals. We affirm as modified. |
Shelby | Court of Appeals | |
Knox County Election Commission v. Shelley Breeding
This case addresses the issue of whether an announced, and otherwise qualified, candidate for the District 89 (Knox County) seat in the State House of Representatives satisfies the residency requirement to run in the Democratic primary on August 2, 2012. The trial court held that she was not eligible to run because the court found that she was a resident of Anderson County. She appeals. We affirm the trial court’s judgment. |
Knox | Court of Appeals | |
Hubert Morrison, et al. v. The City of Bolivar, et al.
We granted this Tennessee Rule of Appellate Procedure 9 interlocutory appeal to answer the question of whether the Tennessee Revenue Bond Law, Tennessee Code Annotated Section 7-34-101, et seq., permits a private right of action on behalf of Appellees, utility rate payers, against Appellants, the City of Bolivar and its utility. The trial court denied Appellants’ motion to dismiss for failure to state a claim on the ground that Appellees could maintain a private cause of action because Tennessee Code Annotated Section 7-34-115(f) did not provide the sole remedy for violation of the statutory scheme. We hold that the Revenue Bond Law does not expressly create an individual private right of action, and that Appellees have not carried their burden to establish that the legislature intended to imply such a right. Accordingly, we reverse the judgment of the trial court and remand for entry of judgment in favor of Appellants. Reversed and remanded. |
Hardeman | Court of Appeals | |
Case Handyman Service of Tennessee, LLC v. Helen Marie Harben Lee
Homeowner retained Contractor to remodel her residence and paid Contractor two out of three installments as provided in the contract. Homeowner was not satisfied with Contractor’s work and refused to pay the final installment. Contractor sued for breach of contract and Homeowner filed a counterclaim asserting Contractor breached the contract by failing to perform the job in a workmanlike and reasonable manner. Homeowner also claimed Contractor violated the Tennessee Consumer Protection Act by engaging in unfair and deceptive practices. The trial court dismissed Contractor’s complaint and held Contractor breached the contract by failing to perform the work in a reasonable and workmanlike manner. The court found Contractor was not liable for double or treble damages under the Tennessee Consumer Protection Act because Homeowner did not prove its deficiencies were intentional or willful. Homeowner appealed, claiming the trial court erred in denying her motion to amend her counterclaim to assert a claim for rescission and erred in holding Contractor did not violate the Tennessee Consumer Protection Act. We affirm the trial court’s judgment |
Davidson | Court of Appeals | |
Dan C. Ray et al. v. Sadler Homes, Inc.
Plaintiff-homeowners filed this action for breach of contract, breach of warranty, and violations of the Tennessee Consumer Protection Act against the builder and seller of their home alleging that the home was not constructed in a workmanlike manner. Following a bench trial, the trial court found that the defendant breached the contract and the express and implied warranties, and violated the TCPA. The court awarded damages of $90,000 for the diminution in value of the home. The court also held Plaintiffs were entitled to recover their attorney’s fees pursuant to the TCPA. Defendant appealed arguing that Plaintiffs failed to prove causation, that the trial court erred in awarding damages in the amount of $90,000 for the diminution in value of the home, and erred in finding it violated the TCPA for which the trial courtawarded attorney’s fees.We affirm the trial court’s findings as to Plaintiffs’ claims for breach of contract and breach of warranty and affirm the trial court’s determinations as to damages; however, we find the evidence preponderates against the finding of a violation of the TCPA and therefore the trial court erred by awarding Plaintiffs their attorney’s fees. |
Wilson | Court of Appeals | |
Tom R. Smith v. Thomas Harding Potter
The trial court granted the defendant’s motion for attorney fees and court costs and executed an order to that effect. The plaintiff filed a motion for relief pursuant to Tennessee Rule of Civil Procedure 60.02 arguing that the trial court violated his due process rights by awarding the defendant attorney fees without providing proper notice and the opportunity to be heard. We reverse the trial court. |
Davidson | Court of Appeals | |
Mary Butcher v. Ronald Butcher
Husband appeals the trial court’s division of property in this divorce action. We affirm. |
Shelby | Court of Appeals | |
The Town of Pegram v. Cornerstone Development, LLC et al.
Town of Pegram appeals from the trial court’s decision awarding it no damages in its claims against Cornerstone Development, LLC, the company which constructed theTown’scity hall and surrounding parking lot. Pegram also appeals the trial court’s summary dismissal of National Grange Mutual Insurance Company, which provided the performance bond assuring Cornerstone’s performance. We affirm the trial court’s findings in all respects. |
Cheatham | Court of Appeals | |
Michael McGhee v. Shelby County Government
This is a breach of contract case. Appellant, a former employee of Appellee Shelby County, filed suit against Shelby County for alleged breach of a settlement agreement. specifically, Appellant alleges that Shelby County breached the contract by failing to change Appellant’s employment record to reflect that he resigned, rather than that he was fired, and/or by informing Appellant’s potential employer that Appellant was fired. Shelby County filed a motion to dismiss on the ground that the six-year statute of limitations for breach of contract actions had expired. The trial court granted the motion to dismiss. We conclude that: (1) the contract is severable; (2) Appellant’s cause of action for Shelby County’s breach of its obligation to change his employment records was correctly dismissed on the statute of limitations ground; (3) Appellee’s contractual obligation to answer employment inquiries pursuant to the terms of the contract was not implicated until the condition precedent occurred (i.e., until inquiry was made by a third-party); and (4) the breach of this obligation accrued when Shelby County disseminated information counter to that contemplated in the settlement agreement. Accordingly, the Appellant’s claim that Shelby County violated the express terms of the settlement agreement in 2010 by informing the Appellant’s potential employer that he was fired is not barred by the applicable statute of limitations. Affirmed in part, reversed in part, and remanded. |
Shelby | Court of Appeals | |
In Re The Decedant Estate of Edward Lavoy Glasscock
This appeal arises from the denial of a petition filed by the niece of a decedent’s surviving spouse to have the decedent’s estate administered and to have a personal representative appointed. The probate court dismissed the niece’s petition for lack of standing holding that she could not proceed as next friend of her aunt because her aunt had previously appointed the decedent’s brother as her attorney-in-fact. The niece contends on appeal that she has standing to pursue the administration of the decedent’s estate in accordance Tenn. R. Civ. Proc. 17.03 because the attorney-in-fact for her aunt failed to initiate administration of the decedent’s estate. We affirm the dismissal of the petition. |
Bedford | Court of Appeals | |
Ron Fausnaught, Jr., M.D. v. DMX Works, Inc.
Defendant corporation, which failed to appear for trial, appeals the trial court’s entry of a judgment against it. Defendant asserts that the trial court erred in denying its Tenn. R. Civ. P.60.02 motion for relief from judgment and in awarding the plaintiff damages that exceeded the ad damnum clause of the complaint. Finding no error, we affirm. |
Bedford | Court of Appeals | |
Deborah Chandler Russell v. Household Mortgage Services et al.
Homeowner challenges the trial court’s dismissal at the summary judgment stage of all of her claims against lenders. We reverse the trial court’s grant of summary judgment with respect to the homeowner’s claims for intentional misrepresentation, negligent misrepresentation, fraud, and violation of the Truth-In-Lending Act. We affirm the trial court’s dismissal of her claim under the Tennessee Consumer Protection Act. |
Davidson | Court of Appeals | |
Ray Paschall, et al. v. Patrick Srebnick, et al.
Plaintiffs, who voluntarily dismissed their lawsuit, appeal the trial court’s award of discretionary costs to the defendants. Finding no error, we affirm the judgment. |
Williamson | Court of Appeals | |
James Lafayette Moore v. Turney Center Disciplinary Board, et al.
This is a certiorari proceeding in which an inmate seeks review of a disciplinary board proceeding that found him guilty of assault on another inmate. Petitioner asserts that the manner in which the disciplinary proceeding was conducted violated Tennessee Department of Correction policies. Finding no error, we affirm the decision of the trial court. |
Hickman | Court of Appeals | |
James Lewis Jackson v. John N. Jewell et al.
Wilson County appeals from the trial court’s denial of its Tennessee Rule of Civil Procedure 60.02 motion to set aside an agreed order of compromise and settlement based upon its contention that the agreement would violate a policy of the Wilson County Road Commission and that it “forgot” the policy when entering into the agreed order. The county also appeals from the trial court’s finding that it was in contempt of the agreed order and must comply with the order within six months, the trial court’s denial of its request to stay the judgment, and the trial court’s award of $750 in attorney’s fees to the plaintiff. Finding the trial court did not abuse its discretion, we affirm the trial court in all respects. |
Wilson | Court of Appeals | |
Betty C. Goff Cartwright v. Jackson Capital, et al.
This appeal involves various claims by a beneficiary of several trusts against his sister and her husband, who serve as the trustee and co-trustee of some of the trusts. The defendants/trustees filed a motion for partial summary judgment, claiming that they had followed the terms of the trusts and paid the beneficiary all distributions to which he was entitled pursuant to the trust documents. In response, the beneficiary asserted that the trust documents were void either because they were fabricated, or because he executed them due to undue influence. The trial court granted the defendants’ motion for partial summary judgment, and the beneficiary voluntarily dismissed all of his remaining claims. The beneficiary appeals. We affirm in part, reverse in part, and remand for further proceedings. |
Shelby | Court of Appeals | |
Linda Haun Scarbrough v. Gary Lynn Scarbrough
Wife appeals the trial court’s classification of property and its division of marital property following the parties’ divorce. She also argues that Husband failed to demonstrate his need for spousal support and that the award exceeds Husband’s actual need. We affirm the decision of the chancery court. We find it appropriate to award Husband his attorney fees incurred on appeal, and we remand to the trial court for a determination of such fees reasonably incurred. |
Meigs | Court of Appeals | |
Sandra Bellanti and Albert Bellanti v. City of Memphis
Plaintiff was severely injured when a padlock, which was allegedly thrown from a City of Memphis mower, broke through her vehicle window. Plaintiff and her husband successfully sued the City. On appeal, the City argues, among other things, that the trial court erred in denying its motion to amend its answer to assert the affirmative defense of the Public Duty Doctrine. Because the trial court’s order denying the City’s motion to amend fails to explain the basis for its denial, we are constrained to remand the case to the trial court for entry of a reasoned explanation of its actions regarding the City’s motion to amend its answer. |
Shelby | Court of Appeals |
