Theresa Godbee v. Robert M. Dimick, M.D.
Patient filed a medical malpractice claim against an orthopedic surgeon for his alleged negligence in her diagnosis and spinal surgery. After a three week trial, the jury rendered a verdict in favor of the physician. The patient appealed, claiming that she was entitled to a new trial because the trial court erred with regard to several evidentiary rulings, its communications with the jurors, its jury instructions and verdict form, and its decision to permit the jury to examine medical articles used in cross-examination. We have determined that the judgment must be reversed and the case remanded for a new trial. |
Davidson | Court of Appeals | |
Debra Owens v. Shelby County Government
This is a lawsuit for on-the-job injury benefits. The plaintiff was employed as a jailer for the defendant county government. She injured her back in a slip-and-fall accident which occurred during the scope of her employment. The county paid her on-the-job injury benefits while she was being treated for her injuries. After about two months, her treating physician released her from his care, stated that she had no permanent anatomical disability, and determined that she was capable of unrestricted work. The county stopped paying her on-the-job injury benefits and she returned to full-dutywork. Later, complaining of continued back pain, the plaintiff saw another physician. This physician opined that the plaintiff had a 6% permanent disability to her body as a whole as a direct result of the slip-and-fall accident. The plaintiff filed this lawsuit for further benefits under the county’s OJI policy. After a trial, the trial court found that the plaintiff did not have a permanent vocational disability and held in favor of the county. The plaintiff now appeals. We affirm, concluding that there is no reason to reject the trial court’s determinations of credibility and that the evidence does not preponderate against the trial court’s decision. |
Shelby | Court of Appeals | |
Steve Mairose, et al. v. Federal Express Corporation
This is the second time this case has been on appeal. This case stems from an alleged breach of an employment contract between an employer and its employees. In this appeal, we are asked to determine (1) whether the chancery court erred when it dismissed eight of the ten plaintiffs from the appeal as they had not perfected an appeal to the trial court’s judgment notwithstanding the verdict that was reversed on appeal; (2) whether the chancery court erred when it found that the employer had not breached its contract when it incorporated an integrated master seniority list that did not “endtail” pilots from another corporation that merged into the employer; (3) whether, assuming that a breach occurred, the employees waived their breach of contract claims by failing to object to the alleged breach in a timely fashion; and (4) whether the chancery court erred when it awarded discretionary costs for court reporter expense for hearings. On appeal, the employees contend that the chancery court erred when it dismissed eight of the ten employees as they had not properly perfected an appeal because the eight employees should be able to benefit from the appellate decision regarding the remaining two employees. The employees also assert that the employer breached their employment contract when it incorporated an integrated seniority list altering their seniority rights and that they had not waived any claim for breach of contract because of their conduct. Finally, the employees contend that the chancery court erred when it awarded discretionary costs for court reporter expenses for hearings as rule 54.04(2) of the Tennessee Rules of Civil Procedure allow for the recovery of court reporter expenses for depositions or trials only. The employer contends that it did not breach the employment contract and that, assuming breach, the employees waived any breach of contract claim because they failed to challenge the arbitration award that established the integrated master seniority list in a timely fashion and that they failed to object to the breach of contract in a timely fashion after the breach. We affirm the decision of the chancery court finding that the employer had not breached its employee contract with its employees and affirm the decision of the chancery court dismissing eight of the ten employees from the new trial as they had not properly perfected an appeal to the chancery court’s original judgment notwithstanding the verdict. Further, we affirm the chancery court’s award of discretionary costs. |
Shelby | Court of Appeals | |
Dawn Nepp, et al. v. Margaret Hart, et al.
This is an appeal of a judgment on a jury verdict. Plaintiffs- homeowners contracted with a construction company, a corporation wholly owned by a single stockholder, to construct their residence. Because of alleged breach of contract and negligent construction, the homeowners filed suit against the corporation and also the sole stockholder and his wife, a director, alleging that they were in fact the alter egos of the corporation. Prior to trial, the corporation was voluntarily dismissed by the homeowners, and the case was tried against the individual defendants on the alter ego theory. The jury found that owner-defendants were liable under the alter ego theory for negligent construction and breach of contract. Judgment was entered on the jury verdict. Plaintiffshomeowners appealed stating that the trial court erred in dismissing some of the other causes of action, but a review of the record reveals that no motion for a new trial was filed by plaintiffs homeowners as required by Tenn. R. App. P. 3 (e), and thus those issues are waived. The individual defendants asserted affirmative issues for review as cross appellants. Although the individual defendants filed a motion for a new trial, many of the issues raised were not specifically stated therein and are consequently considered waived on appeal by virtue of Tenn. R. App. P. 3 (e). Finding that there is material evidence to support the jury verdict, we affirm. |
Williamson | Court of Appeals | |
Annesia W. Jarrett v. Eric D. Cross
The current round in this on-going child support dispute arises from Mother’s petition for contempt for failure to pay child support filed in April 2004, and Father’s cross-petition to modify child custody. The eldest of the parties’ four children had reached the age of majority when the 2004 petitions were filed, and the parties agreed that Father would assume custody of their son, Darius. Father does not dispute that he does not spend any time with the parties remaining two minor children. Mother requested visitation time with Darius after the change of custody. Thus, the proceedings required a resetting of child support. The issues raised by Mother for our review are |
Madison | Court of Appeals | |
Barney Newcomb v. Kohler Company
In April 2003, the plaintiff’s employer terminated his employment. The employer, citing the company’s respectful workplace policy, fired the employee for allegedly cursing a fellow employee. The employee subsequently filed suit against the employer for retaliatory discharge. The employee alleged that his prior workers’ compensation claims were the real reason that his employer terminated his employment. In his complaint, the employee sought compensatory and punitive damages, but did not set forth the amount requested. After the jury trial got underway, the trial court allowed the employee to amend his complaint to request a specific amount of damages for back pay and front pay, but ultimately dismissed the claim for punitive damages. At the conclusion of the employee’s case-in-chief, the employer moved for a directed verdict, which the trial court denied. At the close of the employer’s proof, the jury returned a verdict in favor of the employee finding that his workers’ compensation benefits were a substantial factor in the employer’s decision to terminate his employment. At the end of trial, the trial court conducted a hearing on the issue of whether to |
Obion | Court of Appeals | |
Vicki Lynn Fox v. Terry Wayne Fox - Concurring
I concur in the results reached by the majority and agree with most of the reasoning. However, I do not fully agree with the analysis used to determine whether the Carol Lane Property and the Buffalo Valley Road Property were marital or separate. The analysis used by the majority starts with the presumption that property acquired during the marriage is marital, relying on the definition of marital property in Tenn. Code Ann. § 36-4-121(b)(1)(A). While the opinion acknowledges in a footnote the definition of separate property that includes property acquired in exchange for pre-marital separately owned property, Tenn. Code Ann. § 36-4-121(b)(2)(B), the analysis fails to take that definition into account.1 Logically, that definition should also create a “rebuttable presumption” that is equal in weight to the one used as the basis for the analysis herein. |
Putnam | Court of Appeals | |
Vicki Lynn Fox v. Terry Wayne Fox
This appeal involves the financial aspects of the dissolution of a marriage that lasted approximately ten years. Both parties sought a divorce in the Chancery Court for Putnam County. Following a bench trial, the trial court granted the wife a divorce and approved a permanent parenting plan designating her as primary residential parent for the parties’ two children. In addition, the trial court classified the parties’ assets, divided the marital estate, reduced the husband’s alimony arrearage to a judgment for alimony in solido, and ordered the husband to pay the wife $350 per month in longterm alimony. The husband takes issue on this appeal with the manner in which the trial court classified the parties’ assets and divided the marital estate and with the trial court’s decision to require him to pay long-term alimony. We have determined that the trial court erred in its classification of the parties’ property. However, we find that the evidence fully supports the manner in which the trial court divided the parties’ marital estate, as well as the trial court’s decision to award the wife long-term alimony. |
Putnam | Court of Appeals | |
Auto Credit of Nashville v. Melissa Wimmer - Dissenting
I respectfully dissent from the majority’s conclusion that Auto Credit failed to give Ms. Wimmer reasonable notice of the scheduled sale of the collateral. |
Sumner | Court of Appeals | |
Auto Credit of Nashville v. Melissa Wimmer
A woman bought a used automobile, financing the purchase with a loan from the plaintiff credit company. The loan was secured through a UCC Article 9 security interest in the vehicle. When the buyer fell behind in her payments, the creditor repossessed the car and sent her notice by certified mail that it intended to sell the car and that she would face a deficiency judgment if the sale price was less than the amount she still owed. She did not receive the notice, and the certified letter was returned unclaimed to the creditor the day after the sale. The creditor sued for a deficiency of over $3,400, and the circuit court granted it judgment for the amount claimed. The buyer sought statutory damages under Tenn. Code Ann. § 47-9-625 arguing that the attempted notice was inadequate, and the trial court dismissed her counterclaim. The buyer appeals this dismissal. We reverse the trial court because we find Auto Credit did not act reasonably in proceeding to sell the car without affirming that the notice had in fact been delivered. |
Sumner | Court of Appeals | |
Leonard Frazier v. Donal Campbell, et al.
This appeal involves a petition for writ of certiorari filed by a state prisoner. After drugs were discovered in the inmate’s incoming mail, he was sentenced to punitive segregation. He sought review of his conviction in the Shelby County Chancery Court, which later dismissed his case without prejudice for lack of prosecution. The inmate filed a notice of appeal which we have determined was untimely and therefore a nullity. As a result, we must dismiss this appeal without considering the issues presented by the Petitioner. |
Shelby | Court of Appeals | |
Alvin King v. Shelby County Government Civil Service Merit Board
Employment of a ShelbyCountyDeputy Sheriff was terminated and the decision was upheld by the Shelby County Civil Service Merit Board. The employee filed a petition for writ of certiorari in the Chancery Court of Shelby County. The administrative record was duly filed in the trial court. |
Shelby | Court of Appeals | |
In Re: The Estate of Marjorie Louise Brevard, Decedent, W. Terry Barlowe, Proponent-Appellant, v. Dorothy Brevard and The Estate of John Brevard, Contestants-Appellees
The Trial Court granted contestants of a Will summary judgment, voiding the Will. On appeal, we vacate the summary judgment. |
Sevier | Court of Appeals | |
Louise Spann et al. v. American Express Travel Related Services Company, Inc. et al.
This appeal involves a dispute between a credit and charge card issuer and two cardholders regarding allegedly unauthorized charges to their accounts by entities affiliated with the issuer. The cardholders filed a class action complaint in the Circuit Court for Williamson County asserting that the practice of charging them for goods and services they did not agree to purchase constituted an unfair and deceptive trade practice prohibited by various state consumer protection laws and gave rise to causes of action for negligent and fraudulent misrepresentation, conversion, and unjust enrichment. The issuer and its affiliates filed a motion to compel separate arbitrations against each cardholder in accordance with the class arbitration waiver clause of the arbitration provision in the cardmember agreements. The cardholders conceded that they were required to arbitrate their claims but asked the trial court to strike the class arbitration waiver clause as unconscionable. Siding with the cardholders, the trial court struck the class arbitration waiver clause and granted the motion to compel arbitration. The issuer and its affiliates appealed. We have concluded that the trial court did not err by granting the motion to compel arbitration. However, we have also concluded that the trial court erred by finding the class arbitration waiver clause unconscionable under Utah law. |
Williamson | Court of Appeals | |
James W. McDonnell, Jr., et al. v. Conseco Life Insurance Company, et al.
Plaintiffs James W. McDonnell, Jr., Faith McDonnell Campbell, Anne McDonnell Durell, and James W. McDonnell, III, appeal the trial court’s grant of summary judgment holding that their causes of action are barred by applicable statutes of limitation. Because we find that the trial court failed to execute a final order disposing of all of Plaintiffs’ asserted causes of action, we dismiss this appeal for lack of subject matter jurisdiction under Rule 3(a) of the Tennessee Rules of Appellate Procedure. |
Shelby | Court of Appeals | |
Greg Landaiche, et ux v. Jerry Jenkins, et ux, et al
The Trial Court held that the easement at issue in this case had been abandoned. On appeal, we affirm. |
Roane | Court of Appeals | |
Douglas Martin v. Peggy Sue Martin Moats
Mother appeals finding of contempt for failure to make child support payments and argues that the trial court failed to make the requisite finding regarding her ability to pay. Because there was no evidence introduced to show Mother had the ability to pay, we reverse. |
Davidson | Court of Appeals | |
Jerry Alan Taylor, by and through his next friend, Kay Taylor Gneiwek v. Jackson-Madison County General Hospital District, et al.
Defendant Jackson-Madison County General Hospital District (“Defendant”) appeals a judgment awarding damage for malpractice to Plaintiff Kay Gneiwek (“Plaintiff”) as administrator of the estate of Jerry Alan Taylor. Defendant raises issues pertaining to the competency of Plaintiff’s expert witness, Dr. Douglas Harkrider, M.D., to provide testimony in this case, and further argues that Dr. Harkrider’s testimony failed to establish proximate causation as required under Section 29-26-115 of the Tennessee Code. We affirm in part and reverse in part. |
Madison | Court of Appeals | |
In Re: The Adoption of a Male Child, D.P.E.
This is a parental termination case. Before trial, the trial court inquired if the parties wanted a guardian ad litem appointed to represent the interests of the minor child. The parties indicated that no guardian ad litem was needed. After a contested hearing, the trial court terminated the parental |
Knox | Court of Appeals | |
George Jerles, et al. v. Margie Phillips, et al.
This case arises from a foreclosure on real property. The Appellants purchased the property from Appellees. Appellees financed the property and the parties executed a promissory note and deed of trust. The Appellants fell behind on their payments and the Appellees accelerated the debt pursuant to the terms of the Note, and ultimately foreclosed on the property. The Appellants filed suit for, inter alia, wrongful foreclosure. The trial court granted partial summary judgment in favor of Appellees, and denied Appellants’ Tenn. R. Civ. P. 59.04 motion to alter or amend the judgment. Upon disposal of all other claims, the Judgment became final. Appellants appeal. We affirm. |
Houston | Court of Appeals | |
Claudia Henneberry and husband, Scott Henneberry v. John (Randy) Simoneaux and wife, Mrs. John (Randy) Simoneaux
Plaintiffs sued parents of minor child for damages for injuries caused by minor child. The Trial Court granted summary judgment. We affirm. |
Williamson | Court of Appeals | |
Columbia Gulf Transmission Company v. The Governors Club Property Owners Association, et al.
The owner of a perpetual natural gas pipeline right-of-way easement filed this Declaratory Judgement action to resolve a dispute with the fee simple owners regarding its right of ingress and egress to replace, upgrade and maintain existing underground pipelines. The trial court declared the rights of the gas company were clearly and unambiguously stated in the grant of easement, that it had the right of ingress and egress stated in the Complaint and enjoined the defendants from obstructing or interfering with those rights. The defendants appeal contending the time and manner of the exercise of the right of easement was ambiguous in the grant, and that the court erred by failing to consider the undue burden on the defendants caused by the time the work was scheduled. Finding no error, we affirm. |
Williamson | Court of Appeals | |
State of Tennessee, ex rel., Karen Leigh Chunn v. Donnie Lee Coggins
This appeal is from an order of the trial court denying Appellant’s motion for a continuance. We affirm. |
Shelby | Court of Appeals | |
Michael Mosby v. Roland Colson, et al.
The plaintiff, an inmate in the custody of the Tennessee Department of Correction, filed a pro se lawsuit against numerous prison officials and personnel of the department pursuant to 42 U.S.C. § 1983 in the Circuit Court of Lauderdale County, Tennessee. Therein, the plaintiff complained that prison officials terminated his prison job in retaliation for his filing numerous grievances against them. The plaintiff alleged violations of the United States Constitution, Tennessee statutes, and |
Lauderdale | Court of Appeals | |
Kimberly Kay Allen, et al. v. John Day, et al. and Gannett Satellite Information Network, Inc. et al. v. Powers Management, LLC - Concurring
Because of the troubling potential for overexpansion of the “functional equivalency” rationale established in Cherokee and relied upon herein, I write separately to identify the reason for my concurrence. The key to determining when a private entity, through a relationship with a government, subjects its records to public inspection lies, in the first instance, in the analysis of whether the entity is performing a governmental function. |
Davidson | Court of Appeals |
