In Re: W.B. IV
In a single proceeding, the juvenile court terminated the parental rights of a mother to her three children and the parental rights of the father of one of those children, ruling that they had abandoned the children. The mother and the father filed separate appeals, which we have consolidated for decision. We reverse because the proof at trial did not rise to the level required to establish abandonment as defined by applicable statutes. |
Williamson | Court of Appeals | |
William T. Terrell and Martha M. Terrell v. United Van Lines, Inc., Kwick-Way Transportation Company, and Vanliner Insurance Co.
The Trial Court entered Judgment for plaintiffs for damages, but refused to permit plaintiffs to amend the complaint to claim defendants violated the Consumer Protection Act, and disallowed plaintiffs’ Rule 11, Tenn. R. Civ. P. Motion for Sanctions. On appeal, we affirm. |
Knox | Court of Appeals | |
William T. Terrell and Martha M. Terrell vs. United Van Lines, Inc., Kwick-Way Transportation Company, and Vanliner Insurance Co. - Concurring
I agree with the result reached by the majority. With respect to the motion to amend, I believe the trial court should have entered an order allowing the amendment; after which it could have entered its order dismissing the plaintiffs’ claim. I believe this is the better practice under Tenn. R. Civ. P. 15. However, since the trial court addressed the merits of the complaint, as if it had been amended, any error in refusing to formally allow the amendment is harmless in nature. See Tenn. R. App. P. 36 (b). |
Knox | Court of Appeals | |
Wylie Steel Fabricators, Inc. v. Ruth E. Johnson, Commissioner of Revenue for the State of Tennessee
This appeal involves a sales and use tax assessment issued by the Tennessee Department of Revenue against a taxpayer engaged in the business of fabricating steel products for use in various structures. The taxpayer obtained purchase orders from three churches for raw materials to be used in the fabrication of steel products which were to be incorporated into the churches then under construction. The taxpayer secured the raw materials, fabricated the steel products, and installed them in the churches. The taxpayer did not pay sales or use tax on any of the raw materials used in the fabrication process. The department subsequently audited the taxpayer and assessed a tax liability for taxes owed on the materials. The taxpayer paid the amount assessed and filed suit in the chancery court to contest the assessment. Specifically, the taxpayer asserted that it was entitled to an exemption under section 67-6-209(b) of the Tennessee Code. After both parties filed cross-motions for summary judgment, the chancery court granted the department's motion and denied the taxpayer's motion. We affirm in part, reverse in part, and remand this case to the trial court for further proceedings consistent with this opinion. |
Davidson | Court of Appeals | |
J. Stephen Amison, et al. v. Jack D. McCarty, et al.
J. Stephen Amison and wife, Pamela G. Amison ("the plaintiffs"), purchased a house from Jack D. McCarty and wife, Bertha B. McCarty ("the defendants"). Thereafter, the plaintiffs sued the defendants for damages and, in the alternative, for rescission of the contract of purchase. The plaintiffs alleged that, unbeknownst to them when the contract was signed and when the sale subsequently was closed, the house was infested with termites; that the defendants had prior knowledge of the termite infestation; and that the defendants intentionally or negligently misrepresented the true condition of the house. Following a bench trial, the court decreed rescission, awarded the plaintiffs discretionary costs, and denied the plaintiffs' request for their attorney's fees. Both sides raise issue on appeal. We affirm. |
Bradley | Court of Appeals | |
James Edward Dunn v. Knox County Sheriff's Department Merit System Council, et al.
Following a hearing, the Knox County Sheriff's Department Merit System Council ("the Council") voted to uphold Sheriff Tim Hutchison's termination of the plaintiff, James Edward Dunn. Dunn filed a petition for writ of certiorari in the trial court. He also filed a separate complaint in the same court alleging that the Council had violated the Open Meetings Act. Each side filed a motion for summary judgment on this latter issue. The trial court denied both motions. The trial court then held that the Council's decision to uphold Dunn's termination was supported by material evidence; but the court remanded the case to the Council, because the court held that the Council had failed to follow one of its procedural rules. Both parties have raised issues on appeal. We affirm. |
Knox | Court of Appeals | |
Stephanie Ann Troglen vs. Vincent Lamar Troglen
The issues presented in this divorce case are whether the trial court erred in calculating Mr. Troglen's child support obligation; and whether the trial court erred in awarding Ms. Troglen transitional alimony. The trial court established Mr. Troglen's monthly child support obligation at $755. Additionally, the trial court ordered Mr. Troglen to pay to Ms. Troglen transitional alimony in the amount of $400 per month for a period of five years. We hold that the child support was properly calculated at $755 per month and that the trial court properly awarded Ms. Troglen alimony. However, we modify the alimony award from $400 per month transitional alimony for five years to $400 per month rehabilitative alimony for five years. |
Hamilton | Court of Appeals | |
Lee Ketchersid v. Rhea County Board of Education
Lee Ketchersid, a tenured teacher in the Rhea County School System, appealed her dismissal to the Rhea County Board of Education (“the School Board”). Following a hearing, the School Board determined that the evidence supported the charges against Mrs. Ketchersid of insubordination, incompetence, and inefficiency under the Teachers’ Tenure Act, Tenn. Code Ann. § 49-5-501, et seq., and voted to terminate Mrs. Ketchersid as a tenured teacher. Mrs. Ketchersid appealed the School Board’s decision to the trial court, which, following a de novo review, held that her dismissal was supported by sufficient evidence. Mrs. Ketchersid appeals, arguing that the trial court erred in this determination. We affirm. |
Rhea | Court of Appeals | |
Darrell Massingale v. Yung Gil Lee, P.C., et al.
During surgery to repair a bilateral hernia, Yung Gil Lee, M.D. ("Defendant") also performed an orchiectomy and removed Darrell Massingale's ("Plaintiff") left testicle. Plaintiff sued Defendant claiming, in part, that Defendant had committed both medical malpractice and medical battery. The Trial Court granted Defendant's motion for a directed verdict on the claim of medical battery. The claim of medical malpractice went to the jury and resulted in a mistrial. The Trial Court then reconsidered Defendant's motion for a directed verdict on the claim of medical malpractice and entered an order granting a directed verdict on that claim as well and dismissing the case. Plaintiff appeals claiming that the Trial Court erred in directing a verdict as to both the medical battery claim and the medical malpractice claim. We affirm the directed verdict on the medical malpractice claim, reverse the directed verdict on the medical battery claim, and remand for a new trial on Plaintiff's medical battery claim. |
McMinn | Court of Appeals | |
Walker Gray Haun v. Louis Eugene Haun, Jr.
This appeal involves a dispute between two brothers over the use of a roadway that lies on their adjacent tracts of property. The issue presented is whether Walker Gray Haun has an easement across the property of his brother, Louis Eugene Haun, Jr. The trial court granted Walker Gray Haun an easement either by prescription or by implication which allowed him to use the roadway that had existed for at least fifty years and provided the only vehicular access to a rental house on his property. We hold that Walker Gray Haun did not establish a prescriptive easement, but that his proof satisfied the elements of an easement by implication, and therefore we affirm the trial court’s judgment. |
Blount | Court of Appeals | |
Jerry D. Carmack, et al. v. Tina M. Earp, et al.
Property owners filed suit against neighbors for trespass. Trial court entered judgment for plaintiffs in the amount of $13,740, applying the "mild rule" for calculation of damages for trespass. Trial court also made rulings establishing the boundary lines between property of plaintiffs and defendants, and confirmed the plaintiffs' continuing right of ingress and egress through defendant's property to their own property. On appeal, plaintiffs contend that trial court erred in failing to award damages based on "harsh rule" rather than mild rule; in failing to find that the boundary lines were in keeping with plaintiffs' expert's survey; and in granting summary judgment to defendant water utility district. We conclude that the trial court erred in granting summary judgment to the water utility district. In all other respects, we affirm. |
Sumner | Court of Appeals | |
Luvell L. Glanton v. Bob Parks Realty, et al.
The plaintiff purchased a house that was marketed by the defendant realtors. The house had been described as including over 5,800 square feet of living space. After the purchase, the plaintiff discovered that the actual square footage of the house was considerably less, depending on what was included. He sued for unfair or deceptive practices under the Tennessee Consumer Protection Act and for intentional misrepresentation. The trial court dismissed his complaint on summary judgment, and ordered the plaintiff to pay all the defendants' attorney fees. We affirm the dismissal, but modify the award of attorney fees. |
Williamson | Court of Appeals | |
Becky Elliott v. Donna Akey, Individually and d/b/a Owner of Plaza Restaurant
This appeal involves a dispute between a former employee and her employer. Becky Elliott filed suit in Blount County Circuit Court alleging that Donna Akey failed to properly train and supervise employees at her restaurant in Loudon County, Tennessee resulting in an unsafe workplace. Because the workplace was unsafe, Ms. Elliott claims she had to quit her job and was damaged. According to the complaint, the Plaintiff resided in Blount County, the Defendant resided and operated the business in Loudon County, and the cause of action arose in Loudon County. The trial court granted the Defendant's motion to dismiss for improper venue and awarded sanctions to the Defendant. After careful review, we hold that 1) the trial court properly granted the Defendant's motion to dismiss for improper venue, 2) the trial court properly denied the Plaintiff's motion for default judgment, and 3) the trial court erred in awarding sanctions to the Defendant. Accordingly, we affirm the decision of the trial court in part and reverse in part. |
Blount | Court of Appeals | |
Gladys Boles, et al. v. National Development Company, Inc., et al.
This is a class action on behalf of purchasers of 3,876 lots at Hidden Valley Lakes Development, a residential development in Hickman County. Plaintiffs seek to recover compensatory damages resulting from a breach of contract by the developer, National Development Company, Inc., and its alleged alter ego, Clyde W. Engle. Plaintiffs allege that National breached its contract by failing to provide the centerpiece of the development, a thirty-acre lake. The lake failed to hold water and thus became a thirty-acre hole in the ground. It was stipulated that the failure of National to provide the thirty-acre lake was a breach of contract. The trial was bifurcated into two phases. The first was limited to the plaintiffs' claim for damages against National, following which the plaintiffs were awarded compensatory damages in the amount of $2,540,867 against National. The second phase of the trial was limited to the plaintiffs' claim that Clyde Engle was the alter ego of National and thus liable for the damages assessed against National. Following an evidentiary hearing, the trial court pierced the corporate veil and held Engle personally liable for the judgment against National. The defendants appeal contending that the plaintiffs' proof of damages was neither competent nor sufficient, that the wrong legal standard was applied to pierce the corporate veil and that the proof was insufficient to pierce the corporate veil. Engle also appeals contending that the court did not have personal jurisdiction over him and thus the judgment against him is void. Finding no error, we affirm. |
Hickman | Court of Appeals | |
State of Tennessee Department of Children's Services v. Binta Ahmad
Mother appeals termination of her parental rights to her two minor children. She and her two infant children immigrated to the United States illegally in 1998 when the children were two and one years of age, respectively. In 1999, Mother was arrested on felony theft charges. Being unable to make bond, she remained incarcerated for over a year following which she pled guilty to a felony. She was then turned over to immigration officials and was detained for an additional two years only to be deported to Nigeria in December 2002, where she remains. The children have remained in foster care for more than five years. Mother appeals claiming the evidence to be insufficient to prove grounds for termination and that termination is not in the children's best interest. We affirm. |
Coffee | Court of Appeals | |
Susan Diane Jones v.s Steven Travis Dorrough, et al.
This case arises out of a long-running dispute between Steven Travis Dorrough and his former wife, Susan Diane Jones over possession of the parties' former residence which was awarded to Ms. Jones in the divorce, but was subsequently leased to Mr. Dorrough. Ms. Jones first filed suit against Mr. Dorrough and his new wife for possession of the residence and for unpaid rents, penalties, interest and attorney's fees. The Dorroughs counterclaimed asserting that Ms. Jones had agreed to sell them the property and that they had paid her in full and were entitled to specific performance. The trial court granted a summary judgment in favor of Ms. Jones, awarded her possession of the property, judgment for unpaid rents and attorney's fees, and dismissed the counterclaim. The Dorroughs appealed and we affirmed the trial court's decision as to the dismissal of the Dorroughs' counterclaim and remanded for further findings as to the funds allegedly paid by Mr. Dorrough. The Dorroughs then filed suit against Ms. Jones and this suit was consolidated with the remanded suit. In the second suit, the Dorroughs alleged breach of contract, fraudulent misrepresentation, and outrageous conduct. The trial court granted Ms. Jones' motion for summary judgment on the contract and tort claims. The trial court held an evidentiary hearing on the remanded issue as to whether Mr. Dorrough was entitled to a set-off based on alleged payments by him to Ms. Jones of $192,000. The trial court denied the set-off and awarded judgment to Ms. Jones for rents, late fees, prejudgment interest and attorney's fees. The Dorroughs appealed this adverse decision. After a careful review of the record, we hold that 1) the trial court's grant of summary judgment to Ms. Jones was proper as to the breach of contract claim because the Dorroughs' contract claim was a compulsory counterclaim that they were required to have presented in the original case, 2) the trial court's grant of summary judgment was proper as to the claims for outrageous conduct and fraudulent misrepresentation since the claims were time barred by the applicable statutes of limitation, 3) the evidence does not preponderate against the trial court's finding of fact regarding the rents due, payments made by Mr. Dorrough, and the award of attorney's fees. Accordingly, we affirm the decision of the trial court. |
Knox | Court of Appeals | |
George Hutsell and Teresa Hutsell, v. Jefferson County Board of Zoning Appeals
Plaintiffs obtained a permit and built a "garage and storage building" on their property. The zoning officer received complaints after the building was built, and the Board of Zoning Appeals determined that plaintiffs' use of the building was not allowed in the zoning classification. On certiorari, the Trial Judge affirmed the Board of Zoning Appeals' decision and enjoined plaintiffs from using the building in violation of the zoning ordinance. On appeal, we affirm. |
Jefferson | Court of Appeals | |
Mark Stephen Barlew v. Alice B. Barlew
The issues presented in this divorce case are whether the trial court erred in awarding alimony in futuro rather than rehabilitative alimony; whether the alimony award to the wife was excessive; and whether the trial court erred by refusing to hear evidence regarding the relative fault of the parties. The trial court awarded the wife $1,500 per month in alimony when the wife requested alimony of $1,248 per month and her income and expense statement showed a need of $1,248 per month. We hold that the wife was properly awarded alimony in futuro, but we modify the alimony award to $1,248 per month and affirm the trial court’s judgment in all other respects. |
Hamilton | Court of Appeals | |
Alfred Edwards and wife Alisa Edwards v. Martin McPeake and Helms Motor Company
In this action arising from a motor vehicle accident, plaintiffs claimed damages for personal injuries and the jury returned a verdict finding defendants 100% at fault for the accident, but awarded no damages for personal injuries to plaintiffs. On appeal, we affirm. |
Maury | Court of Appeals | |
In Re H.A.L. - Concurring
The opinion of the Court asserts: The heightened burden of proof required by Tenn. Code Ann. § 36-1-113(c)(1) requires us to adapt Tenn.R.App.P.13(d)’s customary standard of review for cases of this sort. First, we must review the trial court’s specific findings of fact de novo in accordance with Tenn.R.App.P.13(d). Thus, each of the trial court’s specific factual findings will be presumed to be correct unless the evidence preponderates otherwise. Second, we must determine whether the facts, either as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the elements required to terminate a biological parent’s parental rights. Jones v. Garrett, 92 S.W.3d at 838; In re Valentine, 79 S.W.3d at 548-49; In re S.M., 149 S.W.3d at 640; In re M.J.B., 140 S.W.3d at 654. |
White | Court of Appeals | |
In Re H.A.L.
This appeal involves the parental rights of a father who has been incarcerated off and on for most of this fourteen-year-old daughter’s life. The Tennessee Department of Children’s Services filed a petition to terminate the father’s parental rights in the White County Juvenile Court while he was serving a fifteen-year-sentence for first degree robbery. The juvenile court, relying on the grounds contained in Tenn. Code Ann. §§ 36-1-113(g)(1), (3), (9) (Supp. 2004), terminated the father’s parental rights. The father has appealed. We have determined that the Department has presented clear and convincing evidence that the father abandoned his daughter as proscribed by Tenn. Code Ann. § 36-1-102(1)(A)(iv) (Supp. 2004), that he failed to remedy conditions as required by Tenn. Code Ann. § 36-1-113(g)(3)(A), and that terminating his parental rights is in his daughter’s best interests. Accordingly, we affirm the order terminating the father’s parental rights. |
White | Court of Appeals | |
Timothy L. Doss v. Amy J. Doss
On April 7, 2003, Amy J. Doss ("Mother") filed divorce and custody proceedings in the Circuit Court for Lake County, Illinois (the "Illinois Court"). On that same day, Timothy L. Doss ("Father") filed divorce and custody proceedings in the Family Court for Rhea County, Tennessee (the "Tennessee Court"). Both the Illinois Court and the Tennessee Court have asserted subject matter jurisdiction over the custody proceedings and inconsistent orders have been entered regarding child support and visitation. The issues on this Tenn. R. App. P. 10 interlocutory appeal by Mother center around whether the Tennessee Court had subject matter jurisdiction over the custody proceedings and, if so, whether it properly exercised that jurisdiction. We conclude that: 1) the Tennessee Court did not have "home state" subject matter jurisdiction; and 2) even if the Tennessee Court had "significant connection" subject matter jurisdiction, it nevertheless should have declined to exercise that jurisdiction because the Illinois Court clearly is the more appropriate forum. Accordingly, we vacate the judgment of the Tennessee Court with regard to the custody proceedings. |
Rhea | Court of Appeals | |
Clay Manley v. The Automobile Insurance Company of Hartford, Connecticut
This appeal arises from a claim for homeowner's insurance benefits. In 1998, a tornado damaged a home in East Nashville. The owner of the home held an insurance policy that provided coverage for guaranteed replacement cost above the policy limit, once repairs had been completed. After the insurer had paid the owner the actual cash value of the damage, the owner sold the home to the plaintiff for $80,000. Along with the sale, the owner assigned to the plaintiff the rights to any claims or proceeds under the insurance policy. The plaintiff, without making any repairs, began a process of attempting to collect supplemental proceeds under the policy. After the insurer failed to respond to the plaintiff's demand for an appraisal, the plaintiff submitted two sworn statements in proof of loss, claiming a total of $405,072.93 in replacement costs. The insurer rejected the plaintiff's proofs of loss, and this suit followed. Following a jury trial, the trial court entered judgment in favor of the plaintiff for $405,072.93, in addition to $35,000 in damages for bad faith. Because we find that the judgment entered by the trial court was the product of an inconsistent jury verdict, we vacate and remand. |
Davidson | Court of Appeals | |
Edward Rabbit, et al. v. Daniel L. Mills
This appeal involves a decision by the Davidson County Circuit Court to grant a petition for a writ of scire facias after expiration of the ten-year statute of limitations. In granting the petition, the trial court first found that the debtor was equitably estopped from asserting the defense of the statute of limitations because of his bad faith and willful misconduct. Next, the trial court found that the judgment creditors timely filed their petition for a writ of scire facias because the ten-year statute of limitations had been tolled by debtor's filing of a Chapter 13 bankruptcy case and also by the entry of the Order for Payment by Installments. The debtor appealed to this Court. The judgment of the trial court is reversed. |
Davidson | Court of Appeals | |
Flautt And Mann, a Partnership v. The Council of The City Of Memphis, et al.
This appeal involves protracted litigation concerning the zoning of a parcel of land located in Memphis, Tennessee. After a bridge, which provided the only access to the property, washed away, the landowner planned to install and maintain billboards on the subject parcel by helicopter. The landowner initially applied to the Memphis City Council to have the subject parcel re-zoned from agricultural uses to commercial uses. The Memphis City Council rejected the landowner’s application. The landowner filed a petition for review by common law writ of certiorari and an action for declaratory judgment in the circuit court. The circuit court entered an order reversing the decision of the Memphis City Council and remanding the case to the Council for a new hearing. Upon remand, the Memphis City Council once again rejected the landowner’s application. The landowner filed a petition for contempt in the circuit court alleging the Council violated the court’s order on remand. The trial court found that, while the Memphis City Council violated the court’s order in every respect, it was not in willful contempt of the court’s order because it relied on the erroneous advice of its lawyer in interpreting the order. The trial court then proceeded to remand the case to the Memphis City Council once more for a new hearing. The City filed an appeal. We reverse the decision of the trial court and remand the case to the trial court for further proceedings consistent with this opinion. |
Shelby | Court of Appeals |
