Ready Mix, USA, LLC., v. Jefferson County, Tennessee - Dissenting
I cannot concur in the majority’s decision – as stated by it – “that Ready Mix was required to exhaust the administrative remedies provided by statute and the ordinance by appealing the zoning official’s stop work order to the Board of Zoning Appeals.” The majority relies heavily upon our decision in State ex rel. Moore & Associates v. West, 246 S.W.3d 569 (Tenn. Ct. App. 2005). In Moore, the plaintiff alleged that the zoning administrator failed or refused to issue a certificate of compliance even though the developer had installed a Category B landscape buffer that complied with the requirements of the Metro ordinance, giving specifics as to the materials installed, their spacing, and the dimensions and nature of the buffer. Id. at 576-77. The Moore plaintiff asked the court to declare that the buffer it had established in connection with its newly-constructed hotel “complied with the [buffer] requirements of the . . . Code [of the Metropolitan Government of Nashville and Davidson County].” Id. at 577. |
Jefferson | Court of Appeals | |
Clint Black et al. v. Charles Sussman et al.
Entertainer filed this suit against his former business manager, who is an accountant, and against several business entities for breach of fiduciary duty, accounting malpractice, breach of contract, misrepresentation, and violation of the Tennessee Consumer Protection Act. The trial court granted summary judgment for the business manager and another defendant on the ground that the gravamen of the complaint was accounting malpractice and that all of the claims were barred by the applicable one-year statute of limitations. As to a second group of defendants, the trial court granted summary judgment based upon the absence of an actual partnership and the absence of proof that the entertainer relied on any representations of partnership. We have concluded that the trial court erred in granting summary judgment to the first group of defendants because the complaint states causes of action for breach of a business manager’s fiduciary duties as well as causes of action for accounting malpractice, and these two types of causes of action are subject to different statutes of limitations. As to the second group of defendants, we have concluded that summary judgment was not appropriate because material issues of fact remain as to the entertainer’s reliance on representations of partnership. |
Davidson | Court of Appeals | |
Elliot H. Himmelfarb, M.D. et al. v. Tracy R. Allain
Two physicians filed this malicious prosecution action against a former patient after she voluntarily dismissed, without prejudice, a medical malpractice action she filed against them. The defendant, the former patient, moved for summary judgment asserting that the plaintiffs could not prove the essential elements of a malicious prosecution claim: that the medical malpractice suit was brought without probable cause, that it was brought with malice, and that it was terminated in the physicians’ favor. The trial court denied the motion. We have determined that the issue of favorable termination in this case involves questions of fact and law, and that fact questions concerning the circumstances surrounding the voluntary dismissal without prejudice of the medical malpractice action are in dispute. We have also determined that there are genuine issues of material fact concerning the other essential elements. Therefore, the defendant’s motion for summary judgment was properly denied. |
Williamson | Court of Appeals | |
Terry Lake and Linda Ousley v. Louis Haynes, Barbara Haynes and Running Bear Construction
This is a construction case. The plaintiffs hired the defendant construction company to build two residential houses. Disputes arose during construction over completion of the work and the plaintiffs did not make some payments to the construction company. After the plaintiffs terminated the contract, they sued the defendant construction company. The construction company filed a counter-complaint. After a trial, the trial court dismissed the plaintiffs’ complaint and the defendants’ counter-complaint. However, the trial court failed to issue written findings of fact and conclusions of law as required under Rule 52.01 of the Tennessee Rules of Civil Procedure. We vacate the trial court’s judgment and remand the cause to the trial court for written findings of fact and conclusions of law. |
Shelby | Court of Appeals | |
William May v. Illinois Central Railroad Company
This appeal involves a claim under the Federal Employers’ Liability Act. The plaintiff employee filed this lawsuit against the defendant railroad alleging injuries caused by his employment. The railroad company filed a motion for summary judgment, asserting that the employee’s claims are time-barred. The railroad argued that, under the discovery rule, the facts showed that the employee knew or should have known that his injuries were work-related more than three years before the lawsuit was filed. The trial court denied the motion for summary judgment. The railroad was granted permission for this interlocutory appeal. We affirm. |
Shelby | Court of Appeals | |
Ricky Lynn Hill v. State of Tennessee
The trial court dismissed this action, inter alia, for lack of subject matter jurisdiction. We dismiss this appeal for Appellant's failure to timely file the notice of appeal. |
Chester | Court of Appeals | |
In Re Iyana R.W.
The primary residential parent of the parties’ ten-year-old daughter requested permission to relocate to Colorado. The mother’s reason for the relocation was that she had married a man who was a military service member stationed in Colorado. The father opposed the move. The trial court denied the request after finding that the mother’s conduct surrounding the move constituted a material change in circumstances and that it was in the child’s best interest that the father become the primary residential parent. The mother appeals. At the time of the request to relocate, Mother was the primary residential parent and spent substantially more time with the child; thus, Tenn. Code Ann. § 36-6-108(d) applied. Finding that the trial court erred in failing to apply Tenn. Code Ann. § 36-6-108(d), we reverse the trial court’s judgment; grant Mother’s request to relocate to Colorado with the parties’ minor child; deny Father’s petition to change custody; and remand for the trial court to set Father’s visitation. |
Bradley | Court of Appeals | |
Jenny A. Pennington v. Christopher J. Hennessee
Mother filed a petition in 2010 to modify child support set in a 2005 order and parenting plan on the basis of a substantial and material change of circumstances. The trial court dismissed the petition, holding that there was not a significant variance in the parties’ presumptive child support obligations in 2005 and 2010. Mother appeals, contending that the 2005 order and parenting plan are void because they relieved Father of his obligation to pay child support. Finding that the 2005 order fails to comply with Tenn. Code Ann. § 36-5-1-1(e)(1)(A) and Tenn. Comp. R. & Regs. Ch. 1240–2–4–.02(7), we reverse the judgment and remand the case for further proceedings. |
Warren | Court of Appeals | |
McCall Brister v. HCA Health Services of Tennessee, et al.
This is an appeal from the trial court’s grant of a hospital’s motion to dismiss for failure to state a claim upon which relief can be granted. The trial court determined that plaintiff’s claim sounded in medical malpractice and dismissed plaintiff’s claim for failure to comply with the written notice and certificate of good faith requirements of the Tennessee Medical Malpractice Act. Finding that Plaintiff’s complaint states claim for ordinary negligence and premises liability, we reverse the trial court and remand the case for further proceedings. |
Davidson | Court of Appeals | |
Andre Wilks v. Maxine Wilks
This is an appeal of a divorce matter. We dismiss this appeal for Appellant's failure to appeal a final judgment. |
Shelby | Court of Appeals | |
In Re: Aiden R. B., et al.
Amy B. (“Mother”) is the biological mother of the minor children, Aiden R. B. and Evan M. B. (“the Children”). The State of Tennessee Department of Children’s Services (“DCS”) filed a petition to terminate Mother’s parental rights to the Children. Following a trial, the Juvenile Court for Sevier County (“the Trial Court”) found and held, inter alia, that clear and convincing evidence existed to terminate Mother’s parental rights to the Children on four grounds under Tenn. Code Ann. § 36-1-113(g)(1), (2), and (3) and that termination was in the Children’s best interest. Mother appeals the termination of her parental rights. We affirm. |
Sevier | Court of Appeals | |
O’Rane M. Cornish, Sr. v. The Home Depot, Inc.
The trial court awarded summary judgment to Defendant in this malicious prosecution action. We affirm. |
Shelby | Court of Appeals | |
In Re: Jaiden C.W. and Caiden J.W., Children Under the Age of 18 Years (d.o.b. 7/27/2006)
This is a child support case. The juvenile court found, inter alia, the father owed a child support arrearage of $21,356.63. We affirm in part, vacate in part, and remand. |
Coffee | Court of Appeals | |
Leslie Newman, Commissioner of the Tennessee Department of Commerce and Insurance v. Smart Data Solutions, LLC, et al.
This is an appeal of the grant of an application by the Commissioner of Insurance for the State of Tennessee to place an allegedly illegal insurance enterprise into receivership for purposes of liquidation pursuant to the Insurers Rehabilitation and Liquidation Act, Tenn. Code Ann. § 56-9-101, et. seq. Respondents contend they are not insurers subject to the Rehabilitation and Liquidation Act and that, because the court found that the insurance was nonexistent, the appointment of a receiver of the businesses was not authorized. Finding that the activities of the various respondents constitute “insurance business” as defined by the applicable statute and that placing the businesses into receivership was proper, we affirm the order of the trial court. |
Davidson | Court of Appeals | |
In the Matter of: the Conservatorship of: Mary Louise Sottong, Appellee, Geoffrey Sottong, Appellant
In this conservatorship estate, Geoffrey Sottong, son of Mary Louise Sottong, raises issues as to the ruling of the Trial Court regarding the conservator's administration of the conservatorship estate. Upon review, we conclude that the Trial Court's series of orders properly instructed the conservator on administering the estate, and affirm the Judgment of the Trial Court on these issues. |
Hamilton | Court of Appeals | |
Brande Kirk, et al. v. Michael A. Chavin, M.D.
Brande Kirk and Amanda Jordan, as children of Barbara Jordan, (“Plaintiffs”) sued Michael A. Chavin, M.D. alleging medical malpractice in his treatment of Barbara Jordan. Dr. Chavin filed a motion for summary judgment. After a hearing, the Trial Court entered its order on August 30, 2010 finding and holding that Plaintiffs’ expert was not qualified to testify in accordance with Tenn. Code Ann. § 29-26-115, and granting Defendant’s motion for summary judgment. Plaintiffs appeal to this Court. We affirm. |
Hamblen | Court of Appeals | |
Administrative Resources, Inc. v. Tennessee Department of Commerce and Insurance
This case involves judicial review of the Tennessee Department of Commerce and Insurance’s denial of a staff leasing company license. The trial court reviewed the denial of the license under the common law writ of certiorari standard and upheld the decision. Finding that the denial was unsupported by substantial and material evidence, we vacate the decision of the trial court. |
Davidson | Court of Appeals | |
Young Bok Song v. Tennessee Department of Children’s Services, et al.
The petitioner, Young Bok Song (“Song”), a prisoner serving a 65-year sentence resulting from convictions for rape of a child and aggravated sexual battery, filed a petition for declaratory judgment, requesting that the Tennessee Department of Children’s Services (“DCS”) be directed to release to him copies of its investigative records from his criminal case. The trial court dismissed the petition on the grounds of sovereign immunity and failure to state a claim upon which relief can be granted. Song appeals. We affirm. |
Davidson | Court of Appeals | |
Benedicta Kurunwune Obi v. George Obi - Concurring
I concur with the majority’s decision; however, I would assess costs of this appeal against Mr. Obi (“Husband”), not Mrs. Obi (“Wife”), in that this appeal was a result of Husband’s omissions. Further, I write separately to state that I believe, upon proper application pursuant to Tenn. R. Civ. P. 37 by Wife on remand, the trial court may consider imposing monetary sanctions against Husband in the form of expenses and/or attorney fees. |
Court of Appeals | ||
Odell Binkley v. Metropolitan Government of Nashville and Davidson County, Tennessee
The appellant sought a special exception to establish a waste transfer facility. The Metro Council, pursuant to its authority under the Metropolitan Code, disapproved of the proposed location. The appellant sought a writ of certiorari and the trial court dismissed the appeal. The appellant appealed to this court. We affirm the trial court. |
Davidson | Court of Appeals | |
Victor W. Isaac, M.D. v. The Center for Spine, Joint, and Neuromuscular Rehabilitation, P.C.
In this employment contract dispute, the plaintiff seeks to recover a bonus from his former employer. He asserts the defendant breached the contract by failing to pay a bonus as provided in the employment agreement; alternatively, he asserts a claim for promissory fraud. The trial court summarily dismissed plaintiff’s breach of contract claim. Following a bench trial on the promissory fraud claim, the trial court ruled in favor of the defendant and ordered plaintiff to pay defendant $64,471.86 in attorney fees pursuant to the employment agreement. We affirm and remand with instructions that the defendants be awarded reasonable and necessary attorney fees incurred on appeal. |
Davidson | Court of Appeals | |
Benedicta Kurunwune Obi v. George Obi
The trial court granted the wife a judgment of divorce after the husband failed to respond to requests for discovery and a motion to compel. After the judgment became final, the husband, who had been represented by counsel earlier in the proceedings, filed a pro se Rule 60 motion for relief, arguing that he was deprived of proper notice because the address on the certificates of service appended to each unanswered motion and notice was not accurate, with the result that he did not receive the motions and notices. The trial court denied the husband’s Rule 60 motion, but since husband’s address was incorrect on the certificates of service, we conclude the trial court erred and should have granted the husband relief from the parenting plan and child support provisions of the judgment. Accordingly, we reverse the trial court’s order as to those provisions and remand the case for further proceedings. |
Davidson | Court of Appeals | |
In Re Estate of Eloise J. Storey Peggie Sherrill Huber v. Lawrence G. Yohanek, CPA, a/k/a Larry G. Yohanek, Sharron S. Yohanek, and John Gary Storey
This lawsuit was filed by the decedent’s daughter against other family members alleging undue influence, conversion, breach of fiduciary duty, and civil conspiracy. After the decedent suffered a stroke, the family members, as attorney in fact and signatory on the decedent’s bank accounts, made gifts from the decedent’s assets to themselves and to other family members. After the decedent died, the plaintiff daughter filed this lawsuit, alleging that the defendant family members wrongfully depleted the decedent’s assets during her lifetime so as to deprive the plaintiff of her specific bequest in the decedent’s will. The defendants filed a motion for partial summary judgment on various grounds. The trial court granted in part and denied in part the defendants’ motion finding, inter alia, that the plaintiff did not submit evidence to support several of her claims, and that several claims were barred by the statute of limitations. The Plaintiff now appeals. On appeal, we apply the Tennessee Supreme court’s revised analytical framework for summary judgment motions, requiring the defendant movants to either conclusively establish facts supporting an affirmative defense or negate an essential element of the plaintiff’s claim. Applying this standard, we affirm in part, reverse in part, and remand. |
Shelby | Court of Appeals | |
Jerry Alan Richards v. Tina Lou Richards
This is a post-divorce case where both parties sought to modify the existing custody arrangement. At the time of the divorce, the parties agreed to equal co-parenting time. Upon the mother’s request for modification, the court designated her as the primary residential parent and awarded the father standard co-parenting time. The trial court also ordered the father to pay child support and certain outstanding expenses incurred by the mother toward the child’s care. Further, the mother was awarded her attorney fees. In the initial appeal, we found that a material change in circumstances had not been proven. Accordingly, we reversed the trial court’s modification of the original custody arrangement and reinstated the initial permanent parenting plan. We also vacated the trial court’s order as to child support, the payment by the father of expenses incurred by the mother, and the award of attorney fees to the mother, and remanded the case to the trial court for further proceedings. The matter was reheard, with the parties stipulating that there has been a material and substantial change in circumstances. The trial court again named the mother primary residential parent, with the father having co-parenting time every other weekend and on an alternating two-week schedule in the summer. The father appeals. We hold that the evidence does not preponderate against the trial court’s findings. The judgment of the trial court is affirmed. |
Sevier | Court of Appeals | |
Jeffrey D. Key, Individually and as Administrator of the Estate of Randall Eugene Key et al v. Blount Memorial Hospital, Inc. et al.
This is an appeal from a grant of summary judgment to the defendant hospital in a medical malpractice wrongful death case. The trial court struck as untimely the materials filed by the plaintiff in opposition to the defendant’s motion for summary judgment. The responsive materials were filed less than five days before the date originally scheduled for a hearing on the defendant’s motion; however the hearing was continued for several months. Having struck the plaintiff’s filings, the court held that the motion negated violation of the standard of care and causation and granted the motion as unopposed. The plaintiff contends on appeal that the defendant did not negate either violation of the standard of care or causation; that the materials responsive to the motion should not have been stricken; and that, if the materials filed in opposition to the motion are considered, the plaintiff presented issues of material fact for trial. We vacate the trial court’s grant of summary judgment and remand for further proceedings. |
Blount | Court of Appeals |
