Vicky Berry v. Houchen's Market of TN, Inc. and J. D. Easterly Properties - Concurring and Dissenting
I concur with the trial court’s grant of summary judgment as to the Defendant Houchens. However, I respectfully dissent from the majority’s conclusion that the Plaintiff was, as a matter of law, 50% or more at fault when she slipped and fell in oil in the parking lot owned by the Defendant Eatherly. After a review of the facts in the light most favorable to Ms. Berry, the nonmoving party, as is required when considering a trial court’s grant of summary judgment, Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997), I conclude that there are facts and inferences reasonably drawn from the facts which would permit reasonable minds to differ as to whether Ms. Berry was less than 50 % at fault. Accordingly, I do not agree that the Defendant Eatherly is entitled to summary judgment. The undisputed facts are that Ms. Berry drove into the parking lot, parked her car, got out of her car, walked three or four feet, and then slipped and fell in a puddle of oil in the parking lot. Ms. Berry was looking straight ahead as she walked and did not see the oil. She did not see the oil when she drove into the parking spot or before she fell. She could not see the oil after she had gone into the store and was looking out onto the parking lot. She testified that the oil was invisible to her. I cannot conclude that because she had oil in her hair and down her backside after she fell that the oil puddle was so large that she should have seen it. I cannot agree that her recovery should be barred because she was looking straight ahead and not down at her feet as she was walking. We know there was oil in the parking lot. But how large was the puddle of oil? How visible was it? Should Ms. Berry have seen it? These are material questions of fact to be answered by a jury - not the trial court or the appellate court. Issues of comparison and allocation of fault are properly left to the jury. Prince v. St. Thomas Hosp., 945 S.W.2d 731,735 (Tenn. Ct. App. 1996). Reasonable minds can differ as to the reasonableness of Ms. Berry’s conduct as she left her vehicle and attempted to enter the store. |
Davidson | Court of Appeals | |
Vicky Berry v. Houchen's Market of TN, Inc. and J. D. Easterly Properties
Plaintiff fell in a puddle of oil in the parking lot near the Save-a-Lot Market. The Trial Court granted the market and the owner of the parking lot summary judgment. On appeal, we affirm. |
Davidson | Court of Appeals | |
In the Matter of L.A.J., III State of Tennessee, Department of Children's Services v. Larry Jones, Jr.
This case involves the termination of parental rights. The child at issue was born in 1992. In 2000, the child was taken into protective custody based on allegations that the father had sexually abused him. A no-contact order was entered against the father. The mother regained custody of the child in 2002. In April 2003, the mother voluntarily relinquished custody of the child and he was placed with his aunt and uncle. After the child kicked his pregnant aunt in the stomach, custody was returned to the Department of Children’s Services (“DCS”). In June 2003, the child was found to be dependent and neglected. After the father failed to comply with the child’s permanency plan, DCS filed a petition for termination of parental rights as to both the mother and the father. Default judgment was granted as to mother. The court appointed an attorney to represent the father. A trial was held, after which the court ordered termination of the father’s parental rights on several grounds. The father appeals, arguing, inter alia, that the failure to appoint an attorney for him during the dependency and neglect proceedings violated his due process rights. Finding that the dependency and neglect proceedings are separate and distinct from the termination proceedings, we hold that the father received full procedural protection in the termination proceedings that are the subject of this appeal, and affirm the trial court’s decision. |
Tipton | Court of Appeals | |
Pamela Lane v. American General Life and Accident Insurance Company - Concurring
I concur completely in the result reached by the majority. In my opinion, the failure of Mr. Lane to correctly respond to the question pertaining to doctors seen and hospitals visited in the past five years and the question regarding medical tests administered in the same time frame, and the resulting increase in the risk under evaluation by American General, operate as a complete bar to the suit by Wife. Given the very recent nature of these doctor visits, the trip to the hospital, and the tests taken, the information pertaining to these matters had to have been within the consciousness of Mr. Lane when he responded to the subject questions. A trier of fact could not have reasonably found otherwise. Hence, in my judgment, there is no genuine issue of material fact on this critical point. Because of this, I do not think it is necessary to address the interplay between (1) the “knowledge and belief” language on the application and (2) the “unless the matter represented increases the risk of loss” language in Tenn. Code Ann. § 56-7-103. I disassociate myself from this analysis. |
Knox | Court of Appeals | |
Pamela Lane v. American General Life and Accident Insurance Company
In 2002, Ronnie Lane applied for and was issued a life insurance policy through American General Life and Accident Insurance Company (“American General”). Less than two years later, Mr. Lane died from a massive heart attack. Mr. Lane’s wife, Pamela Lane, made a claim for the life insurance benefits. American General denied the claim, asserting that Mr. Lane had made material misrepresentations on the application for life insurance which increased the insurance company’s risk of loss. The Trial Court agreed and granted American General’s motion for summary judgment. We affirm. |
Knox | Court of Appeals | |
Christina Jo Bertuca v. Theodore Joseph Bertuca
This is an appeal from a divorce action filed by Christina Jo Bertuca against her husband, Theodore Joseph Bertuca. The divorce was granted on June 23, 2005, but the trial court reserved the issue of a division of marital assets. That matter was tried in February, 2006. While the hearing related to a variety of assets, most of the evidence presented related to the value of the husband’s ninety percent ownership in Capital Food Services, a Tennessee general partnership that was engaged in the ownership and operation of seven McDonald’s franchises located in Wilson County, Tennessee. The trial court determined the value of Capital Food Services had increased by $1,000,000 above the amount paid for the restaurants. The value of Mr. Bertuca’s interest had, therefore, increased by $900,000 and half that amount was awarded to Ms. Bertuca. Mr. Bertuca has appealed challenging the conclusions reached by the trial court. Ms. Bertuca has appealed from the judgment of the trial court allowing Mr. Bertuca to pay the sum awarded in eighty-four equal monthly installments without interest and asserting she is entitled to her attorneys’ fees on appeal. Having carefully reviewed the record, we affirm the judgment of the trial but modify the increase in value of Capital Food Services to $780,768 and Ms. Bertuca’s award to $350,345.50, payable as ordered by the trial court. |
Wilson | Court of Appeals | |
Lillian A. Carpenter, et al. v. Michael E. Sims, et al.
Beneficiaries under a will sought to rescind the sale of a condominium in which they asserted an inheritance interest upon allegations that 1) the consideration paid by the purchasers was so inadequate as to shock the conscience; 2) the purchasers exerted undue influence over the seller; and 3) the seller was mentally incompetent at the time of the sale. Upon findings that the seller was mentally competent at the time of sale, that the purchasers did not exert undue influence over her, and that she had reason to sell the condominium for the amount she did, the trial court ruled that the sale of the condominium should not be set aside. Upon our determination that the evidence does not preponderate against the trial court’s conclusions, we affirm. |
Cumberland | Court of Appeals | |
Catherine Evonne Flowers v. Jerome Bernard Flowers
The trial court determined the Husband to be the primary residential parent of the parties’ minor child and awarded Wife rehabilitative alimony in the amount of $250 per month for eighteen months. Wife takes issue with these decisions and presents this appeal in which we affirm. |
Shelby | Court of Appeals | |
Joseph Lee v. Anderson County Election Commission, et al - Dissenting
I find nothing in the factual allegations of the complaint that, even if true, would warrant the voiding of this election. As with everything else in life, elections are not perfect. Voters — I suppose for various and sundry reasons, e.g., a long ballot, inexperience in voting, lack of familiarity with the voting machine — stay too long in the voting booth. Furthermore, I am sure that there have been instances in the past when voters reflected their choices on paper ballots even though functioning voting machines were available. The statutes instruct that these things should not happen; but there is nothing in any of the subject statutes to indicate the legislature intended that these violations would warrant the voiding of an election. Furthermore, there is nothing in the complaint even remotely suggesting that, had the various votes in question been cast in strict compliance with the statutes, the election result in this case would have been different. To the extent that Stuart supports the majority opinion in the instant case, I disagree with Stuart — a decision inwhich I was not involved. |
Anderson | Court of Appeals | |
Joseph Lee v. Anderson County Election Commission, et al.
The Trial Court dismissed this election contest on Motion. On appeal we hold the allegation that enough illegal votes were cast to change the outcome of the election when taken as true stated a cause of action. |
Anderson | Court of Appeals | |
Margaret Ann King v. Christy King Spain (Hudson) and Wanda Faye King, et al.
This case involves a dispute over the division of proceeds from the sale of a failed business venture. The trial court referred certain matters to a special master for determination. The special master made several specific findings, but left issues open to be decided by the trial court. The trial court adopted the findings of the special master and made no additional determinations. Appellants appeal. We must dismiss this appeal because there is no final order resolving all the claims between the parties and remand the matter back to the trial court for further determinations. |
Robertson | Court of Appeals | |
John Kirk Tarver, et al. v. Garrison's Custom Cabinets, Inc.
Based on a Special Master’s report, the Circuit Court of Shelby County entered judgment against the appellant for damages for breach of a contract to install cabinets in the appellee’s home. The appellant contends that the trial judge did not independently review the evidence in the record and that the damage award was not supported by the evidence. We affirm. |
Shelby | Court of Appeals | |
Barbara A. Meier v. James W. Meier
This is a post-divorce proceeding in which James W. Meier (“Husband”) filed a motion to amend the final decree pursuant to Tenn. R. Civ. P. 60. The trial court denied the motion. Husband appeals, contending, in part, that the trial court “committed reversible error” when it signed a judgment by consent when it knew that he did not agree to the terms of the proposed judgment. We affirm. |
Rhea | Court of Appeals | |
In Re Estate of William Joe Powell, Deceased
The decedent executed a will in 2001 and a second will in 2004. The decedent made handwritten alterations to the 2001 will at some time subsequent to its execution. After the decedent died, the 2004 will could not be located, and the 2001 will was presented for probate. The trial court ruled that the 2001 will was revoked by the 2004 will and that the decedent died intestate. We reverse the judgment of the trial court because there was no proof that the terms of the two wills were inconsistent or that the 2004 will contained a clause revoking the earlier will. Further, we remand for a determination as to whether the decedent intended to revive the 2001 will and if so, the effect of the decedent’s markings on such will. |
Meigs | Court of Appeals | |
Linda Cherry, et al. v. Robert M. Cherry, et al.
In this appeal, the trial court determined that a deed to the involved property created a resulting trust in favor of the family of the deceased grantor property owner. Grantee appeals. We affirm. |
Lauderdale | Court of Appeals | |
Dattel Family Limited Partnership v. Mary G. Wintz
This is an insurance case. The plaintiff landlord purchased insurance on an apartment building that he owned. The defendant tenant leased an apartment in the landlord’s building. A fire occurred and damaged the apartment building. Pursuant to the insurance policy, the plaintiff insurance carrier paid the landlord to cover the fire damage. The landlord and the insurance carrier, as the landlord’s subrogee under the contract of insurance, filed a lawsuit against the tenant, claiming negligence and breach of contract and seeking compensation for the damage to the apartment building caused by the fire. The tenant moved for summary judgment, asserting that, as a tenant, she was an implied coinsured under the landlord’s insurance policy, and that consequently the plaintiff insurance carrier had no right of subrogation against the tenant. The trial court granted summary judgment in favor of the tenant. The landlord and the insurance carrier appeal. We affirm, holding that, in the absence of an express agreement to the contrary, the tenant is deemed a co-insured under the landlord’s insurance policy, and therefore subrogation against the tenant is not available to the insurance carrier. |
Shelby | Court of Appeals | |
This Is the Second Appeal of this Breach of Contract Case in Gary Weaver, et al., v. Thomas
This is the second appeal of this breach of contract case. In Gary Weaver, et al v. Thomas R. McCarter, et al, No. W2004-02803-COA-R3-CV, 2006 WL 1529506 (Tenn. Ct. App. June 6, 2006), this Court affirmed the trial court’s grant of summary judgment in favor of plaintiffs and remanded the case “for further clarification concerning the amount of damages awarded with respect to plaintiff’s claims of negligence per se, negligent misrepresentation, and breach of contract.” Upon remand, the trial court entered judgment against the defendants jointly and severally and in favor of plaintiffs for compensatory damages and pre-judgment interest. Finding that the trial court abused its discretion in awarding pre-judgment interest, we reverse that portion of the Judgment. We reverse in part and affirm in part. |
Shelby | Court of Appeals | |
Stephen L. Meisenheimer & Michael Loring Meisenheimer ex rel. Stephen L. Meisenheimer v. Gordon Meyer
Gordon Meyer appeals the trial court’s denial of his motion to vacate the judgment entered against him pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. Mr. Meyer and his former wife, Leslie Meyer, were sued by Stephen and Michael Meisenheimer after Michael Meisenheimer, a minor, was injured during a birthday party at the defendants’ residence. Mr. Meyer and Mrs. Meyer failed to appear for trial, and the trial court, after hearing the plaintiffs’ proof, entered a judgment against the defendants in the amount of $12,683.25. Mrs. Meyer’s debt was discharged in bankruptcy, and the plaintiffs sought to collect from Mr. Meyer. The judgment was revived in 2003, and after the assignee of the plaintiffs filed a motion to compel Mr. Meyer to answer postjudgment interrogatories, Mr. Meyer filed a Rule 60.02 motion to vacate the judgment. Although two attorneys entered pre-trial appearances on behalf of Mr. Meyer and Mrs. Meyer, one of whom filed an answer for the couple in circuit court, Mr. Meyer denied knowledge of the lawsuit and claimed that he did not receive notice of the trial date. Mr. Meyer submitted an affidavit from one of the attorneys who appeared on his behalf, claiming that he did not remember ever talking to Mr. Meyer about the lawsuit. An affidavit from a third attorney, Stephen Bowling, who represented Mr. Meyer in his divorce suit and to whom a copy of the judgment in this case was mailed, confirmed that he would not have accepted service or forwarded any legal documents for Mr. Meyer if the documents did not pertain to the divorce action. Following a hearing, the trial court overruled Mr. Meyer’s Rule 60.02 motion, and he appeals. After careful review, we affirm, finding that Mr. Meyer failed to meet his burden of proof to justify Rule 60.02 relief. |
Knox | Court of Appeals | |
Greta Denise Smith (Austin) v. Ricky Allan Smith
This appeal involves a petition for past due child support. When the parties divorced in 1993, the mother was designated as the primary residential parent of the child, and the father was ordered to pay child support “directly to” the mother. In 1998, the mother remarried. From that point forward, the father made his child support checks payable to the child, not to the mother. Nevertheless, the mother endorsed the checks, deposited them into the same bank account as she had before, and maintained control over the use of the funds. Years later, in 2005, the father filed a petition to modify custody, seeking to be designated as primary residential parent. The mother filed a counterclaim for child support arrearages, claiming that the father had not made proper payments as required under the divorce decree since 1998, and that he should not receive credit for the child support checks that were made payable to the child. After a hearing, the trial court gave the father credit for the child support checks. The trial court reasoned that, although the checks were made payable to the child, the money remained in the mother’s control and she treated it as her own. The mother now appeals. We affirm, concluding that the father should receive credit for the disputed payments under the circumstances presented. |
Hardin | Court of Appeals | |
Marsha L. Stewart and Timothy G. Stewart v. Ricky E. Cottrell, Kathy D. Cottrell and Heather B. Cottrell
The issue on appeal is whether the general sessions court may back date the dismissal of a civil warrant, the result of which deprives the plaintiff of the benefit of the Savings Statute to commence a new civil action. When it was discovered that the plaintiffs had requested a voluntary dismissal a year and a half earlier but the case had not been dismissed, the general sessions court entered a dismissal and backdated the effective date of the dismissal to the date the voluntary dismissal had been requested. When the plaintiffs perfected an appeal of the dismissal to the circuit court within ten days of the entry of the order of dismissal, the defendants moved to dismiss the case as being barred by the statute of limitations, relying on the nunc pro tunc application of the dismissal. The circuit court dismissed the case as time barred and this appeal followed. We have determined a dismissal of a civil warrant is not effective until an order of dismissal, signed by the judge, is entered by the clerk of the court. The plaintiffs timely appealed the dismissal of their general sessions warrant within ten days of the date of entry of the order by the clerk. Therefore, this action is not time barred. |
Davidson | Court of Appeals | |
City of Millersville v. Geary Falk
This appeal involves a dispute between the City of Millersville and a homeowner regarding the enforcement of an ordinance regulating the location of dumpsters on residential property. After the Millersville City Court fined the homeowner fifty dollars for violating the ordinance, the homeowner appealed to the Circuit Court for Sumner County. Following a bench trial, the court found that the homeowner had violated the ordinance and, in addition to fining him fifty dollars, ordered the homeowner to remove the dumpster from his property. The homeowner has appealed. We have determined that the trial court erred by ordering the homeowner to remove the dumpster from his property. |
Sumner | Court of Appeals | |
Betty Jean Webb v. David Fred Lane
Plaintiff appeals from a judgment rendered in her favor contending that the award was insufficient to compensate her for her injuries. In the absence of a transcript or sufficient statement of the evidence, we affirm. |
Rutherford | Court of Appeals | |
Anna C. Burden v. Harry Donald Burden
In this divorce case, Anna C. Burden (“Wife”) challenges the trial court’s award of joint custody and its adoption of the Permanent Parenting Plan submitted by Harry Donald Burden (“Husband”), which plan provides for equal parenting time with regard to the parties’ child, A.V. (“Child”). Wife contends that she should be the primary residential parent, with Husband having visitation rights. Wife also challenges the court’s division of the marital property and its denial of alimony. We reverse as to custody, affirm as to the division of property, and vacate the judgment as to alimony. This case is remanded for further proceedings on the issue of alimony. |
Campbell | Court of Appeals | |
Milan Box Corporation v. Donna Hardy, et al.
Plaintiff Milan Box filed this lawsuit against former employee Donna Hardy and her husband, Billy Hardy, alleging fraud, embezzlement, conversion, and unjust enrichment. During discovery the Hardys submitted responses to written interrogatories, but subsequently asserted their fifth amendment rights against self-incrimination during deposition and moved the court to stay litigationpending criminal proceedings. The Hardys subsequently withdrew the motion to stay; nevertheless, the trial court denied the motion to stay when the Hardys failed to execute deeds of trust to real property in favor of Milan Box as security. The trial court granted Milan Box’s motion for summary judgment, and the Hardys appeal. We affirm summary judgment against Donna Hardy but modify the award of damages, reverse the award of summary judgment against Mr. Hardy, and remand for further proceedings. |
Gibson | Court of Appeals | |
Willie L. Hill v. Margie L. Simpson
In this action for damages for injuries sustained in a motor vehicle accident, the Trial Judge approved a jury verdict for the defendant. Plaintiff appealed on grounds of jury misconduct. We affirm. |
Knox | Court of Appeals |
