Keilah Gonzalez-Bonilla v. Eduardo Mendez
Keilah Gonzalez-Bonilla (“Mother”) and Eduardo Mendez (“Father”) are the divorced parents of a minor child (“the Child”). At the time of the divorce, Mother was named the primary residential parent of the Child, and Father was granted visitation. After the divorce, Mother relocated and a revised permanent parenting plan was entered on August 3, 2007. In December of 2007, Father filed a petition seeking a change in custody of the Child alleging that a material change in circumstances had occurred. After a trial, the Trial Court entered its order on August 4, 2009 finding and holding, inter alia, that there had been a material change in circumstances since February 5, 2007, that custody would be changed with Father to be the primary residential parent, and that the joint decision making would be changed and Father shall have the decision-making authority. Mother appeals to this Court. We find that the proper date from which to determine whether there had been a material change in circumstances is the date the previous order was entered, i.e., August 3, 2007, and that a material change in circumstances sufficient to justify a change in custody had not been proven. We, therefore, reverse the Trial Court’s order changing custody, and remand this case to the Trial Court for reconsideration of its orders regarding child support in light of this Opinion. |
Knox | Court of Appeals | |
Deborah Lynn Davis v. Jack E. Scariano, Jr., M.D. et al.
The plaintiff, Deborah Lynn Davis, appeals from a grant of summary judgment to the defendants, Dr. Jack E. Scariano, Jr., and his group, West Knoxville Neurological Associates. Except when the context requires otherwise, we will refer to the defendants collectively as “Dr. Scariano.” Davis sued Dr. Scariano alleging medical malpractice and fraud related to the doctor’s treatment of her and to the billing of her account. Dr. Scariano moved for summary judgment. After granting Davis several continuances, the trial court heard the motion and granted it based on Dr. Scariano’s filings and the plaintiff’s failure to present evidence establishing a disputed issue of material fact. Davis appeals. We affirm. |
Knox | Court of Appeals | |
Richard W. Feldman, M.D. v. Tennessee Board of Medical Examiners
This appeal arises out of disciplinary proceedings against a physician before the Tennessee Board of Medical Examiners. The Board found the physician guilty of numerous statutory and regulatory infractions, and it assessed a monetary penalty against the physician and revoked his license for at least one year. The physician filed a petition for review in chancery court, and the chancery court affirmed the decision of the Board. The physician appeals, challenging the Board’s decision on numerous grounds. We affirm. |
Davidson | Court of Appeals | |
Michael C. Dressler et al. v. Edward Buford
This is an action to establish the common boundary line between adjacent property owners. ollowing a four-day bench trial, the trial court adopted Plaintiffs’ survey to establish the parties’ common boundary line. Defendant appeals arguing that the evidence preponderates against the trial court’s findings. Finding the evidence does not preponderate against the trial court’s numerous findings, we affirm. |
Clay | Court of Appeals | |
Otter’s Chicken Tender, LLC v. Joey Coppage
This appeal arises out of a breach of contract action between a restaurant and its former employee. On cross motions for summary judgment, the court resolved all issues between the parties except whether attorney fees should be awarded and whether a permanent injunction should be issued against the employee. The court subsequently dismissed both parties’ claims for attorney fees and extended a temporary injunction previously entered. Both parties appeal the denial of attorney fees; in addition, defendant asserts that the trial court erred in extending the temporary injunction. Finding that the court erred in determining that plaintiff was not the prevailing party, we reverse the court’s denial of attorneys fees to plaintiff and remand for an award of fees for time spent pursuing injunctive relief; we affirm the court’s action in extending the temporary injunction. |
Davidson | Court of Appeals | |
Rachel Lee Ex Rel. Rebecca Lee v. Mark Emkes, Commissioner of the Tennessee Department of Finance and Administration
Petitioner, when she was thirteen years old, was having difficulty eating because of the position of her teeth, which also irritated her lips and cheeks. An orthodontist recommended braces to remedy the problem; however, the Tennessee Department of Finance and Administration denied TennCare coverage for orthodontic braces. Upon review by the Davidson County Chancery Court, the court found that the TennCare regulations impermissibly required both a Salzmann Index score of 28 and an abnormal dental development, i.e., a handicapping malocclusion, to qualify for orthodontic treatment, and that the Salzmann Index was an illegal utilization control because it nullified eligibility based upon an individualized review. The trial court also found that petitioner had not demonstrated a handicapping malocclusion, which is a valid utilization control under the regulations, therefore, she did not qualify for braces. Petitioner appealed. We affirm the trial court’sfinding that the TennCare regulation in effect at the time impermissibly required a Salzmann Index score of at least 28 to qualify for orthodontic treatment. The record does, however, establish that an individualized assessment of Petitioner’s condition to determine whether she had a handicapping malocclusion was conducted by a consulting dentist employed by the agency, which satisfies the federal requirements. Accordingly, we affirm the trial court’s decision to affirm the agency’s denial of orthodontic braces. |
Davidson | Court of Appeals | |
In the Matter of: Scott C.
Mother appeals the termination of her parental rights. The trial court found by clear and convincing evidence that Mother’s parental rights should be terminated on the grounds of mental incompetence, substantial noncompliance with the provisions of the permanency plan, and persistence of conditions, as well as a finding that termination of her rights was in the best interest of the child. Mother appeals. We affirm. |
Lincoln | Court of Appeals | |
John Haynes v. Rutherford County et al.
The issue in this matter is whether Tenn. Code Ann. § 16-1-116 (“the Transfer Statute”) tolls the running of the statue of limitations when a claim under the Government Tort Liability Act is filed in a court that lacks subject matter jurisdiction, and the court transfers the case to a court with jurisdiction. Acting pro se, the plaintiff filed a GTLA claim in the general sessions court of Rutherford County; the civil warrant was filed prior to the running of the one-year statute of limitations for a GTLA claim. Because subject matter jurisdiction over GTLA claims is limited to the circuit court, the sessions court transferred the case. The circuit court held that, because the sessions court lacked jurisdiction, the transfer itself was invalid; therefore, the action was not effectively filed until it was transferred to the circuit court. However, the date of transfer was beyond the applicable one-year statute of limitations for GTLA claims; thus, the circuit court dismissed the case as time barred. We have determined this case is not time barred because, under the Transfer Statute, the statute of limitations was tolled when the civil warrant was timely filed in sessions court and, because it was timely filed, the sessions court was authorized to transfer the case to the circuit court. Therefore, we reverse and remand with instructions to reinstate the case and for further proceedings consistent with this opinion. |
Rutherford | Court of Appeals | |
Amy Lynn Phelps v. Emerson John Phelps
The trial court granted the wife a divorce after a marriage of nineteen years, awarded her most of the marital property including the marital home, and made her wholly responsible for the mortgage debt on the residence. The court awarded the wife the husband’s share of the equity in the home in the form of alimony in solido. The husband argues on appeal that the property division was inequitable. He also contends that the trial court should have awarded alimony to him rather than to the wife. We affirm the trial court’s division of marital property and its determination not to award alimony to the husband, but we modify its judgment to include husband’s share of the equity in the marital home in the property division, rather than as a separate award of alimony in solido. |
Maury | Court of Appeals | |
Admiral Webster v. Psychemedics Corporation
The plaintiff’s employment was terminated by the employer for violation of the company’s drug testing policy. The plaintiff alleged negligence against the defendant, a biotechnology company with independent laboratory facilities providing hair testing for the detection of drugs and providing drug-testing services to the plaintiff’s former employer. The trial court granted the defendant’s motion for summary judgment. The plaintiff appeals. We reverse. |
Monroe | Court of Appeals | |
Andrew J. Braden, III v. Tennessee Department of Correction, et al.
This case stems from a disciplinary action taken against a prisoner, Andrew J. Braden, III (“Braden”), by the Tennessee Department of Correction (“TDOC”). Braden filed a petition for writ of certiorari in the Chancery Court for Hickman County (“the Trial Court”). The Trial Court denied the requested relief and dismissed the petition for writ of certiorari. Braden appeals, arguing that (1) the disciplinary board denied him his due process rights by appointing him an advisor who was unfamiliar with disciplinary policy and procedures, and (2) that substantial deviations from TDOC policy deprived Braden of a fair hearing. We affirm the judgment of the Trial Court. |
Hickman | Court of Appeals | |
Barry W. Ritchie v. William E. Haslam, Governor of the State of Tennessee, et al.
Petition for declaratory judgment was filed seeking a declaration as to whether petitioner was entitled under Article 1, Section 9 of the Tennessee Constitution to a hearing on his contention that the court from which he was convicted lacked territorial jurisdiction. Trial Court granted motion to dismiss on the ground that the petition failed to state a claim for relief under the Declaratory Judgment Act. We affirm the dismissal of the petition. |
Davidson | Court of Appeals | |
Kimberly E. Love v. Steven D. Beard
The plaintiff filed this action against her brother alleging that he misused her power of attorney and that he stole some of her property. Following a bench trial, the trial court held that the plaintiff failed to prove her claims, with the exception of her claim for theft of her automobile, and ordered the defendant to pay restitution for the vehicle. Plaintiff appealed; however, she failed to file a transcript of the proceedings or a statement of the evidence for which we must accept the findings of the trial court as correct. Finding no error, we affirm. |
Rutherford | Court of Appeals | |
Bellsouth Telecommunications, Inc. d/b/a AT&T (TN) v. Shundra Y. Young and Maureen F. Kinsella
Plaintiff sued Defendants for damages arising from a motor vehicle accident. The trial court struck, from Defendants’ answers, allegations regarding the comparative fault of an unidentified nonparty. However, the trial court allowed references to such nonparty at trial, and the jury assigned no fault to Defendants. Finding no error in the trial court’s allowance, we affirm the judgment of the trial court. |
Shelby | Court of Appeals | |
Earl Thacker, et al., v. Shapiro & Kirsch, LLP., Paul Abraham and the Knoxville News Sentinel
In this action the plaintiffs sued the substitute trustee who conducted a foreclosure sale, alleging that notice of foreclosure, as required by the Statute, had to be published in a newspaper located in the county where the land was located. The Knoxville News Sentinel intervened in the case since it had published the foreclosure notice, but the Trial Judge, responding to a motion for summary judgment, held that the Knoxville News Sentinel did not have a nexus to Roane County and that a proper notice would have been required to be placed in the Roane County newspaper. The Knoxville News Sentinel appealed, and on appeal we reverse the Judgment of the Trial Court and hold that the statutorily required notice was properly placed in the Knoxville News Sentinel. |
Roane | Court of Appeals | |
Heather R. Gunter Freels v. Derek C. Freels
This is a divorce case. The appellant, Derek C. Freels, seeks to appeal from an order of the trial court entered February 22, 2011. That order is not final, and, hence, is not appealable as of right. Accordingly, this appeal is dismissed. |
Morgan | Court of Appeals | |
In the Matter of: Shanira J., Christina J., and James J.
This is an appeal of a dependency and neglect proceeding. We dismiss the appeal for lack of a final judgment. |
Shelby | Court of Appeals | |
Susan Lynn (Mery) Stansberry v. Michael James Mery
In the parties' divorce in 2000, they agreed to a joint custody arrangement of their two minor children. This action was triggered in 2008 when the father advised the mother he intended to move to North Carolina and take the children with him. In the action brought by the mother, she asked to be designated the primary caregiver and custody of the children to remain in Hamblen County. Following a protracted evidentiary hearing, the Trial Court denied the father's request to give him custody and take the children to North Carolina, but awarded custody of the children to the mother with visitation to the father. The father has appealed, and we affirm the Judgment of the Trial Court and remand. |
Hamblen | Court of Appeals | |
Kevin Dale Schreur v. Hollye Richelle Garner
The parents of two children were divorced in 2007, and Father was named the primary residential parent. Mother filed a petition in 2008 seeking a modification of the residential parenting schedule and requested that she be named the primary residential parent. The trial court found no material change of circumstance to warrant changing the primary residential parent from Father to Mother, but found it to be in the children’s best interest to modify the parenting schedule so that the children spent alternating weeks with Mother and Father. Father appeals, arguing the trial court had no grounds upon which to modify the residential schedule. We conclude the evidence supports the trial court’s decision that it is in the best interests of the children to spend alternating weeks with each parent. Under the relevant statute, that is sufficient to establish a material change of circumstance. Accordingly, we affirm. |
Williamson | Court of Appeals | |
In Re: Joshua S.
This appeal involves the termination of parental rights. The State removed the child at issue from the custody of the parents due to neglect, parental absence, and underlying substance abuse. The child was ultimately placed with the petitioner foster parents. Subsequently, the biological parents moved out of Tennessee. The foster parents later filed a petition to terminate the parental rights of the biological mother and father, as a predicate to adoption. The trial judge terminated the parental rights of the biological parents on the grounds of persistent conditions and abandonment by failure to provide a suitable home, failure to visit, and failure to support.The mother and father appeal. We reverse on the grounds of persistent conditions, abandonment by failure to pay support, and abandonment by failure to provide a suitable home. However, we affirm on the ground of abandonment by failure to visit and affirm the termination of parental rights. |
Anderson | Court of Appeals | |
Geneil Hailey Dillehay v. Velmer Jean Gibbs
In this boundary line dispute, Plaintiff-Appellant argues that the trial court erred by relying on the survey of Defendant-Appellee’s expert and not on the surveys proffered by Plaintiff-Appellant’s experts in determining the boundary. After a thorough review of the record, we conclude that the evidence does not preponderate against the trial court’s decision. Consequently, we affirm. |
Smith | Court of Appeals | |
Una P. Irvin v. Ernest J. Irvin, II
This is a divorce case in which Husband/Appellant appeals the trial court’s order. After a thorough review of the record, we conclude that the trial court’s order is not final because it fails to address Husband’s request concerning the sale of the marital residence. The order is also deficient in that it: (1) is ambiguous and fails to resolve certain conflicts between a mediation agreement and a stipulation entered by the parties; (2) fails to make the mandatory findings as required by Tennessee Rule of Civil Procedure 52.01, and specifically fails to properly value the marital property. We dismiss the appeal and remand for entry of a final judgment, which resolves the ambiguities and is otherwise compliant with Tennessee Rule of Civil Procedure 52.01. |
Montgomery | Court of Appeals | |
Violet Corrozzo a/k/a Violet Guarino v. Joseph B. Corrozzo et al.
This is an appeal from the dismissal of the plaintiff’s complaint for intentional fraud, unjust enrichment and breach of contract. Because the plaintiff did not file her notice of appeal within thirty days after entry of the order denying her motion to alter or amend the judgment as required by Tenn. R. App. P. 4, we dismiss the appeal. |
Rutherford | Court of Appeals | |
William L. Downing v. Sherrie J. Downing
The trial court granted the wife a divorce on the ground of inappropriate marital conduct, and divided the marital property, awarding the marital home to the wife and a nearby piece of unencumbered business property to the husband. The court also made the husband responsible for 60% of the mortgage obligation on the marital home and allowed the wife to retain her entire 401(k) retirement account. The husband contends on appeal that the division of property and debt was inequitable and that the trial court impermissibly awarded the wife her 401(k) account in the form of alimony in solido. We affirm the division of marital property and marital debt. We also find that there was no alimony award, because the final order in this case, signed by the judge, treats the 401(k) as part of the division of marital property rather than as alimony. However, it appears to us that the trial court made some calculating errors when it ordered the husband to pay specific monthly amounts on the home mortgage. We therefore vacate that portion of the court’s order and remand this case to the trial court so that it may correct those calculations. |
Sumner | Court of Appeals | |
Kirkland Sturgis v. Donna Smith Thompson
This is an appeal from the circuit court’s dismissal of an appeal from the general sessions court. The appellee purchased property during a foreclosure sale. The appellee purchaser filed an action in general sessions court to gain possession of the property from the defendant/appellant and recover rent. After an adverse judgment in the general sessions court, the defendant/appellant appealed to the circuit court. The circuit court found that the defendant/appellant failed to perfect her appeal because she did not file a cost bond or make bond for one year’s rent and costs. Consequently, the circuit court dismissed the appeal from general sessions court. The defendant/appellant appeals to this Court. We affirm based on failure to file a cost bond. |
Crockett | Court of Appeals |
