Timothy Sanders v. CB Richard Ellis, Inc.
This is a premises liability case. Appellant sued Appellee for injuries sustained in a fall on an icy parking lot that was maintained by Appellee. The material facts of the case are undisputed and, on principles of comparative fault, the trial court determined that Appellant was at least 50% liable for the injuries he sustained in that Appellant (1) ignored the open and obvious danger when he undertook to walk inside the bank, (2) decided not to use the drive-through window in order to avoid traversing the ice, and (3) undertook a risk that a reasonable person would have avoided. Finding no error, we affirm. |
Madison | Court of Appeals | |
State of Tennessee v. Cordelia Ream
After the appellant pled guilty to criminal contempt in the juvenile court and received a four-day sentence, she appealed to circuit court, contending that the sentence was excessive. After being unsuccessful in circuit court , she then appealed to this Court. We found that the appeal of a criminal contempt conviction should be directly to this Court and not to the circuit court. Having resolved the appeal process issue, this Court finds that the acceptance of the guilty plea below was in contravention of constitutional standards and was plain error. The criminal contempt conviction is therefore vacated and this case is remanded for further proceedings. |
Dickson | Court of Appeals | |
Rode Oil Company, Inc. and Long Outdoor Advertisign v. Lamar Advertising Company (Formerly Outdoor Communication, Inc.)
At its core, this appeal presents a dispute over whether two parties had entered into an enforceable agreement for the lease of land to be used for the placement of a roadside billboard. The trial court held that there existed only an offer from the property owner which was revocable and that therefore the property owner could freely lease the same property to a third party. During the pendency of this litigation in the trial court, which took many years, a series of corporate asset transfers and acquisitions occurred—the result of which raises the question of whether the same party is in fact now on both sides of this suit. The court below held that a live controversy still exists, and it subsequently proceeded to set damages. For the reasons stated herein, we conclude that the trial court erred in its initial decision regarding the existence of a binding lease agreement. Accordingly, we reverse and remand for further proceedings consistent with this opinion. |
Madison | Court of Appeals | |
Metropolitan Government of Nashville and Davidson County v. Margaret Hudson
This is an appeal from an award of discretionary costs. The defendant owned a rental house in an historic district. She violated the historic district’s design guidelines by having vinyl siding installed on the house. The plaintiff filed a lawsuit to require the homeowner to remove the siding. The plaintiff was granted summary judgment, from which the defendant homeowner appealed. In the first appeal of this case, the grant of summary judgment was affirmed. After remand, the defendant homeowner failed to remove the siding, so the plaintiff filed a petition for contempt. After a hearing, the trial court found that the homeowner had the financial resources to have the siding removed, so it ordered the homeowner to (1) retain a contractor and (2) remove the siding. The homeowner was required to notify the court upon completion of both steps. The siding was removed. Once the house was brought into compliance, the plaintiff filed a proposed “order closing the file.” The trial court granted the motion. Within thirty days after entry of this order, the plaintiff filed a motion for an award of its discretionary costs. The homeowner opposed the motion, arguing that the plaintiff’s motion for discretionary costs was untimely, and that the order requiring compliance was the final order, not the “order closing the file.” The trial court awarded the plaintiff its discretionary costs, and the homeowner appealed. We affirm, finding that the motion for discretionary costs was timely filed. |
Davidson | Court of Appeals | |
Tony Monroe v. Jacqueline Zierden, et al.
The trial court dismissed Appellant’s complaint for specific performance of a contract for the sale of real estate, and granted Appellee reasonable attorney’s fees as provided in the contract. Appellant appeals the award of attorney’s fees; Appellee asserts error in the amount of fees awarded. We affirm. |
Decatur | Court of Appeals | |
Teresa Walker Newman v. Wayne Woodard, et al.
This case concerns the access rights of a landowner to a section of her property divided from the rest of her land by a steep bluff. The trial court held that the landowner did not have an implied easement through her neighbor’s land to access her property at the bottom of the bluff because the there was insufficient evidence that the right-of-way preexisted severance of the properties. The trial court determined that Mrs. Newman did not have an implied easement by necessity because there was insufficient evidence that Mrs. Newman would be unable build a road down the bluff for a reasonable cost. Because the evidence does not preponderate otherwise, we affirm that Mrs. Newman does not have an implied easement or an implied easement by necessity over the right-of-way. The trial court also held that Mrs. Newman lacked a prescriptive easement over the right-of-way because she failed to prove that her use was exclusive; we affirm on the basis that Mrs. Newman failed to demonstrate that her use of the right-of-way was continuous. |
Lauderdale | Court of Appeals | |
John Doe v. Catholic Bishop for The Diocese of Memphis
This appeal involves the denial of a motion to dismiss based on the statute of limitations. The plaintiff, a thirty-seven year old man, filed a lawsuit against the defendant Catholic diocese. His complaint alleged that, as an adolescent, he was sexually abused by a Catholic priest employed by the defendant diocese. The lawsuit alleged that the diocese was negligent in hiring, retaining, and supervising the priest, and that the diocese breached its fiduciary duty to the plaintiff by failing to disclose to him its knowledge that the priest had abused other young boys. The diocese filed a motion to dismiss, arguing that the lawsuit was barred by the statute of limitations. In response, the plaintiff argued that the statute of limitations was tolled under the discovery rule, the doctrine of fraudulent concealment, and the doctrine of equitable estoppel. The trial court denied the motion to dismiss. The diocese was granted permission for this interlocutory appeal. On appeal, we reverse, finding that the plaintiff’s complaint is time-barred, and cannot be saved by the discovery rule, the doctrine of fraudulent concealment, or the doctrine of equitable estoppel. |
Shelby | Court of Appeals | |
In Re: Bridgestone/Firestone and Ford Motor Company Litigation
The second appeal in this case involves the effect of a previous forum non conveniens dismissal. The plaintiffs, residents and citizens of Mexico, were injured in automobile accidents that took place in Mexico. They filed multiple lawsuits against several American corporate defendants, alleging that the accidents were the result of defects in the vehicles’ tires. The corporate defendants moved for dismissal on the ground of forum non conveniens. The trial court denied the motions, and the defendants were granted permission to file an interlocutory appeal. The Court of Appeals reversed the trial court and dismissed the consolidated case on the ground of forum non conveniens, based on the availability of Mexico as a more convenient forum for litigation of the plaintiffs’ claims. Subsequently, the plaintiffs filed numerous lawsuits in several Mexican trial courts. These cases were all dismissed, and the dismissals were affirmed on appeal. The plaintiffs then filed new lawsuits in Davidson County Circuit Court against the same defendants, which were again consolidated for pretrial purposes. The defendants filed motions to dismiss on grounds of issue preclusion, arguing that the issues of forum non conveniens and the availability of Mexico as an available alternate forum had been determined in their favor in the first appeal. The trial court denied the motion to dismiss, finding that Mexico was not, in fact, an available forum, as evidenced by the numerous dismissals by the Mexican tribunals. The defendants were granted permission for this interlocutory appeal. On appeal, we address the effect of our previous decision and vacate the order denying the defendants’ motion to dismiss, and remand the cause to the trial court for further proceedings on the availability of Mexico as an alternate forum for the plaintiffs’ claims. |
Davidson | Court of Appeals | |
State of Tennessee ex rel. Bee Deselm, et al. v. Diane Jordan, et al.
The plaintiffs brought this action seeking the removal of several Knox County officials from office on the ground that they were ineligible for their positions by operation of the term limits provision of the Knox County Charter. Six days after the plaintiffs filed their complaint, the Tennessee Supreme Court heard arguments in the case of Jordan v. Knox County. The Supreme Court in its Jordan opinion, released on January 12, 2007, decided all issues raised in the case before us. Accordingly, we affirm the trial court’s dismissal of the plaintiffs’ complaint on the basis of mootness. |
Knox | Court of Appeals | |
Cordova the Town Homeowners Association, Inc. v. Gill Development Company, Inc.
This appeal involves the interpretation of a declaration of covenants for a homeowners’ association. The declaration made the developer a member of the homeowners’ association, insofar as the developer owned lots within the development. It also stated that the obligation to pay assessments on a given lot did not begin until either the lot was transferred from the developer or improvements on the lot were completed, whichever occurred first. The homeowners’ association sued the developer, seeking damages for unpaid assessments on lots owned by the developer, on which improvements were not complete. The trial court granted the motion for summary judgment filed by the homeowners’ association. The developer appeals. We reverse, concluding that the declaration of covenants provides that the obligation to pay assessments on the lots owned by the developer had not yet commenced. |
Shelby | Court of Appeals | |
Frankie Lewis, et al. v Cleveland Municipal Airport Authority, et al.
This lawsuit challenges actions by the Cleveland Municipal Airport Authority (the “Airport Authority”) and the Bradley County Commission (the “Commission”) involving the rezoning by the Commission of certain property located in Bradley County from Forestry Agricultural Residential to Special Impact Industrial. The Airport Authority intends to relocate the Cleveland Municipal Airport to the rezoned property. Frankie Lewis originally filed this lawsuit and Herbert Haney was added later as a plaintiff. As pertinent to this appeal, the Trial Court determined that Lewis lacked taxpayer standing to bring this lawsuit against the Airport Authority and granted the Airport Authority’s motion to dismiss. Lewis appeals the dismissal of his lawsuit against the Airport Authority. As to the Commission, both plaintiffs allege statutory and procedural violations surrounding notice of the requested rezoning and the conduct of the Commission in eventually granting the request for rezoning. The Trial Court granted the Commission’s motion for summary judgment after concluding that there were no genuine issues of material fact and the Commission was entitled to a judgment as a matter of law. Both Lewis and Haney appeal that summary judgment. We conclude that the Trial Court did not err in granting the Airport Authority’s motion to dismiss and the Commission’s motion for summary judgment. The judgment of the Trial Court is, therefore, affirmed. |
Bradley | Court of Appeals | |
Barsha Bates Land et al. v. Larry W. Barnes et al.
The trial court dismissed this medical malpractice case after granting motions to exclude the testimony of both of the plaintiffs’ expert witnesses. Based upon our conclusion that the trial court did not abuse its discretion in excluding the testimony of either expert witness, we affirm the decision of the trial court. |
Lincoln | Court of Appeals | |
Vickie F. (Lout) Hudson v. David P. Lout
This domestic relations action requires us to construe a provision of the parties’ 1993 divorce decree with respect to the division of defendant/Appellant David P. Lout’s (Mr. Lout’s) military retirement pay. The trial court construed the 1993 decree as requiring Mr. Lout to pay to Plaintiff/Appellee Vickie F. Lout Hudson (Ms. Hudson), Mr. Lout’s former wife, an amount equivalent to 28 percent of his military retirement pay. The trial court calculated this amount as onehalf the retirement pay received by Mr. Lout, multiplied by a fraction representing the number of years the parties were married divided by the number of years Mr. Lout served in the military. The trial court also ordered Mr. Lout to pay arrearages and awarded Wife her attorney’s fees as damages predicated on a finding of contempt. Mr. Lout appeals; we affirm the trial court’s construction of the parties’ 1993 decree of divorce, vacate the finding of contempt and award of attorney’s fees, and remand. |
Tipton | Court of Appeals | |
Stellena Marie Morelock, individually and as next of kin of Delmus Holmer McCarter vs. The Estate of Rhiannon R. Galford and Danny McKee
In this wrongful death action the Trial Court granted defendants summary judgment on the grounds that plaintiff was not a proper party to maintain the action. On appeal, we affirm. |
Knox | Court of Appeals | |
Patsy Wicks Dawson v. Isaac Dale Dawson
After more than eighteen years of marriage, Patsy Wicks Dawson (“Wife”) sued Isaac Dale Dawson (“Husband”) for divorce. After a trial, the Trial Court entered an order, inter alia, awarding Husband a divorce and distributing the marital property. Wife appeals raising an issue regarding the distribution of the marital property. We vacate the distribution of the marital property and remand this case to the Trial Court to value items of marital property as necessary to effectuate an equitable division of marital property under the facts of this case such that Husband receives 60% and Wife receives 40%. The remainder of the Trial Court’s Final Decree of Divorce is affirmed. |
Roane | Court of Appeals | |
In the Matter of: FLBH, FJH, JR., FH, FLHH, and FEH
This is a termination of parental rights case. By final order entered in April 2008, the trial court terminated the parental rights of Respondent/Appellant Betsy Hawkins (Mother)2 to her five children, F.L.B.H.; F.J.H., Jr.; F.H.; F.L.H.H.; and F.E.H., based on persistence of conditions. Mother filed a timely notice of appeal to this Court. Sometime prior to the transmission of the record to this Court, nine exhibits were misplaced in the trial court.3 Petitioner/Appellee State of Tennessee, Department of Children’s Services (“the State”) and Mother agree that the missing exhibits cannot be recreated for the purpose of review on appeal. |
Shelby | Court of Appeals | |
In Re K.E.D.M. a/k/a/ K.E.D.S
The issue presented in this parental termination case is whether it was shown by clear and convincing evidence that termination was in the best interest of the child. After careful review, we hold that the evidence preponderates against the trial court’s finding that there was clear and convincing evidence that termination was in the best interest of the child. Accordingly, we reverse the judgmnet of the trial court and dismiss the petition to terminate. |
Hamblen | Court of Appeals | |
Ervin D. Smith, et al. v. Paul Evans, et al.
Owners of property brought suit to terminate an ingress/egress easement across their land, contending that the necessity for the easement no longer existed. Following a trial, the Chancery Court ruled against the owners, finding that since the easement was reserved in a recorded plat, it was not an easement by necessity; consequently, the easement was not destroyed upon the sale of the dominant estate. On appeal, the owners maintain that the easement was destroyed at the end of the necessity. Finding the easement to be express, we affirm the decision of the Chancery Court. Finding the appeal not to be frivolous, no attorney’s fees are awarded. |
Montgomery | Court of Appeals | |
Mary Polite v. Metropolitan Development and Housing Authority Agency
Plaintiff appeals the Rule 12.02(6) dismissal of her petition for a common law writ of certiorari which sought review of her termination from the Metropolitan Development and Housing Agency. Plaintiff, an at-will employee of the Agency, was terminated after an administrative hearing officer found that she had violated Agency policy. After the Agency filed a motion to dismiss for failure to state a claim upon which relief can be granted, the trial court determined the petition failed to state facts sufficient to satisfy the pleading requirements of a common law writ.ing the facts asserted in the petition in the light most favorable to the plaintiff, we find the petition failed to state factual allegations sufficient to state a claim that the Board acted illegally, arbitrarily, or fraudulently, and thus, it failed to state a claim upon which relief can be granted. We, therefore, affirm the Rule 12.02(6) dismissal. |
Davidson | Court of Appeals | |
Metropolitan Government of Nashville and Davidson County, Tennessee v. Walter Cuozzo
Walter Cuozzo (“the defendant”) was found guilty of traffic violations in general sessions court. He appealed to circuit court but failed to comply with a local rule that provides “an appellant [on an appeal from general sessions court] has forty five (45) days to secure a trial date from the court.” Because of this failure, the circuit court dismissed the defendant’s appeal. We affirm. |
Davidson | Court of Appeals | |
John C. Filson, et al. v. Wells Fargo Home Mortgage, Inc.
The mortgagors filed suit, charging the mortgagee with breach of contract for failure to comply with terms of a note, deed of trust, and automatic payment service plan pursuant to which the mortgagee greed to automatically debit the mortgagors’ bank account for monthly payments. The jury found the mortgagee guilty of breach of contract and awarded damages in the amount of $250,000. The trial court remitted this damage award to $150,000. On appeal, the mortgagee argues that the trial court erred by failing to grant the mortgagee’s motions for directed verdict and for judgment notwithstanding the verdict on the ground that the mortgagors were guilty of the first uncured material breach of contract, by excluding evidence as a discovery sanction and by awarding the mortgagors $150,000. The mortgagors contend that the mortgagee waived all issues by not including them in its motion for new trial. After careful review, we hold that 1) the mortgagee did not waive its issues for purposes of appeal because the issues were included in the memorandum of law it incorporated in the motion for new trial; 2) the trial court did not abuse its discretion in excluding certain evidence as a discovery sanction upon our finding that the mortgagee failed to explain why the excluded evidence was not timely provided to the mortgagors or to establish its importance at trial; 3) the trial court did not err in failing to grant the mortgagee’s motions for directed verdict and judgment notwithstanding the verdict upon our finding that the mortgagee was guilty of the first uncured material breach of contract by failing to timely institute its automatic payment service plan; and 4) in compliance with the mortgagee’s request, this case is remanded for a new trial solely on the issue of damages upon our finding that the trial court’s award of damages in the amount of $150,000 is not supported by the evidence. |
Davidson | Court of Appeals | |
Moore & Associates, Inc. v. Metropolitan Board of Zoning Appeals
Zoning administrator denied a waiver of the Metropolitan Zoning Code’s landscape buffer requirement and the Board of Zoning Appeals upheld the administrator’s interpretation of the ordinance. Plaintiff contractor appealed to the circuit court, which determined that the zoning administrator’s interpretation of the ordinance was incorrect and granted the waiver. The Board of Zoning Appeals appealed. The trial court’s interpretation of the ordinance is affirmed, but the decision to grant the waiver is vacated, and the case is remanded to the trial court with instructions to return the matter to the board for further action. |
Davidson | Court of Appeals | |
State of Tennessee ex rel. Michelle Strickland v. Terry Copley
This appeal arises from post-divorce proceedings involving child support obligations. The original divorce and support orders were entered in Michigan. The mother subsequently moved to North Carolina, and the child support order was transferred to that state. The father moved to Tennessee and became delinquent in making his support payments. The mother began to receive public assistance and executed an income assignment assigning to North Carolina the right to receive the back child support owed by the father. Upon request by North Carolina, Tennessee then brought suit to enforce the North Carolina order. In the Tennessee proceedings, the trial court changed custody from the mother to the father and ordered the mother to pay the father child support. In the process, the trial court determined that the mother owed back child support to the father and then used this amount to setoff the obligation owed by the father to North Carolina. For the reasons stated herein, we determine that a setoff cannot be used to deprive North Carolina of recoupment of its public assistance. The judgment below allowing the setoff is therefore vacated, and this case is remanded for further proceedings consistent with this opinion. |
Gibson | Court of Appeals | |
Meta-Sue Jones Woodall v. Jethero Jackson Woodall, Jr.
This appeal arises from a divorce action. The issues presented on appeal relate to the trial court’s classification and division of the parties’ property. We affirm. |
Shelby | Court of Appeals | |
In Re: Estate of William Anthony Lucy Rita Clark, Shelby County Assessor or Property, et al. v. Naomi Schutte, as Administratrix of the Estate of William Anthony Lucy
The Shelby County Assessor and Shelby County moved to intervene in a probate case in order to amend a prior order previously entered adjudicating a claim made against the decedent’s estate by the City of Memphis for delinquent personal property taxes. The would-be intervenors claimed as their interest in the case the possibility that the probate court’s decision might be deemed preclusive in a tangentially related chancery proceeding. The probate court denied the motion to intervene and ordered that the movants pay the estate’s attorney’s fees. We conclude that the movants did not possess a substantial legal interest in the litigation warranting their intervention under Tenn. R. Civ. P. 24.01, and we further conclude that the probate court did not abuse its discretion in finding the motion to be untimely. Accordingly, we affirm the probate court’s denial of the motion to intervene as well as its denial of a companion motion made under Tenn. R. Civ. P. 60.02. We, however, vacate its decision awarding the estate attorney’s fees. |
Shelby | Court of Appeals |
