Timothy Davis, as surviving spouse and next of kin of Katherine Michelle Davis v. Michael Ibach, M.D., and Martinson Ansah, M.D.
This is a medical malpractice wrongful death action. After the plaintiff filed this lawsuit, he timely filed a certificate of good faith, as required by the medical malpractice statute. The certificate did not include a statement that the executing party had “zero” violations of the statute. The defendants filed a motion to dismiss based on this omission. The plaintiff in turn filed a notice of voluntary nonsuit without prejudice. The defendants objected to a dismissal without prejudice. The defendants argued that, if the certificate of good faith does not strictly comply with the statutes, the trial court must dismiss the case with prejudice. The trial court granted the voluntary nonsuit without prejudice, and the defendants now appeal that decision. DIscerning no error, we affirm. |
Dyer | Court of Appeals | |
Thomas Hager, Et Al. v. John George
This case involves a dispute regarding the use of an abandoned county road. The road runs through the land of John George, Appellee, who sought to deny his neighbors, Thomas and Bobbye Hager, Appellants, access to the road. The Hagers brought suit claiming they had acquired rights to use the road through adverse possession, a private access easement pursuant to the abandonment of a public road, or a prescriptive easement. The trial court found that the Hagers had established the creation of a prescriptive easement butlimited their right to maintain the easement to emergency conditions only. The Hagers argue that the trial court erred in restricting their ability to reasonably maintain the easement. Mr. George contends that the trial court erred in finding the Hagers had acquired rights in the road through a prescriptive easement. We find that the trial court correctly held that the Hagers acquired a prescriptive easement but that a right to conduct reasonable maintenance is a necessary incident of an easement by prescription. Accordingly, we affirm in part, reverse in part, and remand to the trial court for further proceedings. |
Davidson | Court of Appeals | |
Patricia Mulhaire-Breeden v. Nashville Midnight Oil, LLC et al.
This is an appeal from an order setting aside a default judgment. Because the order appealed does not resolve all the claims between the parties, we dismiss the appeal for lack of a final judgment. |
Davidson | Court of Appeals | |
Bradley M. Barkhurst, et al. v. Benchmark Capital, Inc., et al.
This appeal concerns a dispute over damages in a fraud case. Bradley M. Barkhurst and his wife Judith R. Barkhurst (“the Plaintiffs”), victims of a Ponzi scheme, filed a complaint against Amparo Goyes Jarosh, personal representative of the estate of Charles D. Candler (“Defendant”) , in the Chancery Court for Knox County (“the Trial Court”). 1 The Trial Court granted summary judgment in favor of the Plaintiffs. The Plaintiffs appeal, arguing, among other things, that they should have been granted enhanced damages under the Tennessee Consumer Protection Act (“the TCPA”). We hold that enhanced damages are not available in an action against an estate. We also modify the Trial Court’s judgment to include in the award to Plaintiffs certain taxes and interest that the Plaintiffs incurred in the Ponzi scheme. |
Knox | Court of Appeals | |
Johnny L. Miller, et al. v. Miranda Moretz, et al.
This appeal results from an automobile accident. The plaintiffs filed a negligence action against the owner and driver of the vehicle that collided with them. The jury that heard the matter concluded that the defendant driver was only 10 percent at fault, with the rest of the fault assessed to the plaintiff driver. The trial court entered judgment on the jury verdict for the defendants. After a motion for a new trial was denied, the plaintiffs filed this appeal. We affirm the judgment of the trial court. |
Knox | Court of Appeals | |
Stephanie D. Turner v. Kevin Turner
Father appeals the trial court’s order setting aside its prior judgment terminating Mother’s parental rights. After a hearing, the trial court ruled that Father’s failure to comply with the statutory notice requirements rendered the termination judgment void. Discerning no error, we affirm. |
Fayette | Court of Appeals | |
Stephanie D. Turner v. Kevin Turner - Concurring Opinion
I concur with Judge Stafford’s thorough opinion. After several discussions and independent research, I believe that my colleagues are correct on the law. |
Fayette | Court of Appeals | |
Kimberly A. Sparkman v. Burns Phillips, Commissioner, Tennessee Department of Labor And Workforce Development, and First Tennessee Bank, N. A.
This appeal involves the denial of unemployment compensation benefits. The petitioner was employed by the defendant bank. When the petitioner employee arrived for work, the employee’s supervisor smelled alcohol on her and asked her to take an alcohol test. The employee refused to take the alcohol test, and as a result her employment was terminated. The employee filed for unemployment benefits. The defendant commissioner held that the employee was discharged for work-related misconduct and was disqualified from receiving unemployment benefits,and the denial of benefits was affirmed in the administrative appeals process. The employee then filed the instant lawsuit for judicial review of the administrative decision. The trial court affirmed the agency’s decision, and the petitioner now appeals. Discerning no error, we affirm. |
Maury | Court of Appeals | |
In Re Justin A. H.
This is a petition for dependency and neglect, child support, and breach of contract arising out of an international adoption. The respondent adopted the subject child from Russia. A few months later, after experiencing difficulties with the child, she placed the child on a oneway flight to Russia and sought to annul the adoption. The adoption agency that brokered the adoption filed this lawsuit against the respondent in juvenile court, seeking child support and alleging that the child was dependent and neglected. The juvenile court dismissed the case, and the case was appealed to the circuit court below. On appeal to circuit court, the petition was amended to add the child as a petitioner and to seek child support and damages arising out of the adoption contract. After protracted proceedings, the trial court granted the petitioners’ motion for default judgment against the respondent for failing to file an answer to the petition and failing to cooperate in discovery. The trial court later conducted a hearing on damages, at which the respondent did not appear. The trial court awarded damages to the petitioners and ordered the respondent to pay child support. It later denied the respondent’s motions for post-judgment relief. The respondent now appeals. Discerning no error, we affirm. |
Bedford | Court of Appeals | |
Raines Brothers, Inc. v. H. Michael Chitwood et al.
This contract action stems from the defendant’s, H. Michael Chitwood’s, failure to pay for construction work that was performed by the plaintiff, Raines Brothers, Inc. (“Raines”). The work was performed on a home that was occupied by Mr. Chitwood but owned by a trustee, James Dreaden, who was also named as a defendant. Following a bench trial, the trial court awarded Raines a judgment against Mr. Chitwood and Mr. Dreaden (collectively “Defendants”) in the amount of $66,762.71. The trial court also awarded pre-judgment interest at the rate of eighteen percent per annum, beginning August 14, 2007. The trial court denied Raines’s claim for attorney’s fees. Defendants timely appealed the trial court’s ruling. Having determined that Raines adequately proved its entitlement to this amount pursuant to the parties’ contract, we affirm the trial court’s judgment of $66,762.71 against Mr. Chitwood. We reverse the trial court’s judgment against Mr. Dreaden. We modify the trial court’s award of the rate of interest from eighteen percent per annum to ten percent in accordance with relevant statutory and case law. We also reverse the trial court’s denial of Raines’s claim for attorney’s fees pursuant to the parties’ contract and remand for a determination of the proper amount of interest to be charged, as well as a reasonable award of attorney’s fees. |
Hamilton | Court of Appeals | |
Doyle S. Silliman, et al. v. City of Memphis
In this case, we are called upon to review the trial court’s decision to set aside a consent order regarding an annexation on the basis of the subsequent passage of legislation allegedly affecting the agreed-upon annexation. Because we conclude that Tennessee Code Annotated Section 6-51-122 does not apply to prohibit the annexation ordinance at issue, we reverse the trial court’s judgment and reinstate the consent order. |
Shelby | Court of Appeals | |
Estate of Mary Lou Lamb v. D. Jimmy Brinias, et al.
The Estate of Mary Lou Lamb appeals a grant of summary judgment to defendant Ernest L. Joyner raising issues regarding whether the Chancery Court for Knox County (“the Trial Court”) erred in finding that the plaintiff’s response to the defendant’s motion for summary judgment was filed untimely and therefore was not considered by the Trial Court, and whether the Trial Court erred in granting summary judgment on the issue of adverse possession. We find and hold: (1) that the Trial Court did not err in finding that the plaintiff’s response was filed untimely; and (2) that Ernest L. Joyner failed to show that he was entitled to summary judgment as a matter of law. We vacate the grant of summary |
Knox | Court of Appeals | |
Capital Bank v. Oscar Brock, et al.
Capital Bank filed a complaint seeking a deficiency judgment against Oscar Brock and Frank E. Cowden, III (“Defendants”) after they defaulted on a loan and following the sale at foreclosure of the property securing the debt. After settlement discussions were unsuccessful, Capital Bank moved for summary judgment. It asserted that no genuine issue of material fact exists and that it is entitled to a judgment as a matter of law. Defendants contested the motion but only as to the amount of the deficiency and the issue of whether Capital Bank is entitled to an award of attorney’s fees. As a defense to the deficiency claim, Defendants stated that the property was sold at foreclosure for an amount “materially less” than its fair market value and that Capital Bank’s knowledge of the alleged less-than- arketvalue sales price amounted to fraud, collusion or misconduct. The trial court granted Capital Bank’s motion. It was awarded a judgment of $168,798.98 which amount includes 70,628.85 in attorney’s fees. Defendants appeal. We affirm. |
Hamilton | Court of Appeals | |
In re: Kiara C.
This is a termination of parental rights case, focusing on Kiara C., the minor child (“Child”) of Mark C. (“Father”) and Pamela B. (“Mother”). On April 9, 2012, Mother and Mother’s husband, Richard B. (“Stepfather”), filed a petition for termination of Father’s parental rights and adoption of the Child by Stepfather. Following a bench trial, the trial court granted the petition for termination upon its finding, by clear and convincing evidence, that Father had abandoned the Child by willfully failing to visit her and willfully failing to provide financial support in the four months preceding the filing of the petition. The court further found, by clear and convincing evidence, that termination of Father’s parental rights was in the Child’s best interest. Father has appealed. We affirm. |
Blount | Court of Appeals | |
Brittany Evans, by and through her attorney-in-fact, Mary Evans, her natural mother, v. Jennifer Williams, et al.
This is a health care liability action appeal. The case was tried before a jury, resulting in a judgment for the defendant physicians. The trial court excluded the testimony of one of the plaintiff’s expert witnesses on the applicable standard of care after finding that he was not qualified under the locality rule. The plaintiff appealed to this Court arguing, among other things, that the trial court erred in its application of the locality rule. We hold that it was error for the trial court to exclude the witness, but find that any error was harmless under the facts of this case. We therefore affirm. |
Gibson | Court of Appeals | |
Mike Locke and Cvan Avian v. The Estate of David Rose
After the death of David Rose, his two putative non-marital sons became involved in three separate lawsuits related to the proper distribution of his property. When Mr. Rose’s Executrix filed to probate his Will in solemn form, the putative sons, who were named residuary beneficiaries, objected, but later withdrew their objection. They then filed suit to set aside a 2006 Trust Agreement in order to reinstate prior trusts, the assets of which were to be distributed to Mr. Rose’s issue at his death. They also filed a separate lawsuit to establish Mr. Rose as their biological father. Their attempts to obtain some of their father’s assets were all unsuccessful. In all three cases, the trial court held that they were barred from establishing a father-son relationship because their attempts were time barred. We affirm the trial court’s dismissal of the sons’ petition to establish paternity filed in the probate case two years after the order admitting the will to probate. However, we reverse the trial court’s dismissal of the petitioners’ complaint challenging the validity of the 2006 Trust Agreement because they have standing to attempt to establish that they are “issue” of Mr. Rose. The deadline imposed by the trial court applied only “for purposes of intestate succession,” and the trust case did not involve inheritance through the statute regarding heirs of a person dying without a will. Mr. Rose had a will, which was probated. Any assets to be distributed to Mr. Locke and Mr. Avian from the preexisting trust(s) would be pursuant to the terms of the trust document(s), not pursuant to intestate succession. For the purpose of establishing their interest in the prior trust(s), the purported children were entitled to present proof that they were the children of Mr. Rose and were not time barred. |
Davidson | Court of Appeals | |
Mike Locke and Cvan Avian v. The Estate of David Rose - Dissenting in Part and Concurring in Part
I respectfully dissent from the majority’s conclusion that the plaintiffs are not time barred to establish that they have standing to contest David Rose’s 2006 Trust Agreement. I fully concur with the affirmance of the dismissal of the other underlying cases. |
Davidson | Court of Appeals | |
Mike Locke and Cvan Avian v. The Estate of David Rose
After the death of David Rose, his two putative non-marital sons became involved in three separate lawsuits related to the proper distribution of his property. When Mr. Rose’s Executrix filed to probate his Will in solemn form, the putative sons, who were named residuary beneficiaries, objected, but later withdrew their objection. They then filed suit to set aside a 2006 Trust Agreement in order to reinstate prior trusts, the assets of which were to be distributed to Mr. Rose’s issue at his death. They also filed a separate lawsuit to establish Mr. Rose as their biological father. Their attempts to obtain some of their father’s assets were all unsuccessful. In all three cases, the trial court held that they were barred from establishing a father-son relationship because their attempts were time barred. We affirm the trial court’s dismissal of the sons’ petition to establish paternity filed in the probate case two years after the order admitting the will to probate. However, we reverse the trial court’s dismissal of the petitioners’ complaint challenging the validity of the 2006 Trust Agreement because they have standing to attempt to establish that they are “issue” of Mr. Rose. The deadline imposed by the trial court applied only “for purposes of intestate succession,” and the trust case did not involve inheritance through the statute regarding heirs of a person dying without a will. Mr. Rose had a will, which was probated. Any assets to be distributed to Mr. Locke and Mr. Avian from the preexisting trust(s) would be pursuant to the terms of the trust document(s), not pursuant to intestate succession. For the purpose of establishing their interest in the prior trust(s), the purported children were entitled to present proof that they were the children of Mr. Rose and were not time barred. |
Davidson | Court of Appeals | |
Mike Locke and Cvan Avian v. The Estate of David Rose - Dissenting in Part and Concurring in Part
I respectfully dissent from the majority’s conclusion that the plaintiffs are not time barred to establish that they have standing to contest David Rose’s 2006 Trust Agreement. I fully concur with the affirmance of the dismissal of the other underlying cases. |
Davidson | Court of Appeals | |
Mike Locke and Cvan Avian v. The Estate of Thomas W. Schlater, et al.
After the death of David Rose, his two putative non-marital sons became involved in three separate lawsuits related to the proper distribution of his property. When Mr. Rose’s Executrix filed to probate his Will in solemn form, the putative sons, who were named residuary beneficiaries, objected, but later withdrew their objection. They then filed suit to set aside a 2006 Trust Agreement in order to reinstate prior trusts, the assets of which were to be distributed to Mr. Rose’s issue at his death. They also filed a separate lawsuit to establish Mr. Rose as their biological father. Their attempts to obtain some of their father’s assets were all unsuccessful. In all three cases, the trial court held that they were barred from establishing a father-son relationship because their attempts were time barred. We affirm the trial court’s dismissal of the sons’ petition to establish paternity filed in the probate case two years after the order admitting the will to probate. However, we reverse the trial court’s dismissal of the petitioners’ complaint challenging the validity of the 2006 Trust Agreement because they have standing to attempt to establish that they are “issue” of Mr. Rose. The deadline imposed by the trial court applied only “for purposes of intestate succession,” and the trust case did not involve inheritance through the statute regarding heirs of a person dying without a will. Mr. Rose had a will, which was probated. Any assets to be distributed to Mr. Locke and Mr. Avian from the preexisting trust(s) would be pursuant to the terms of the trust document(s), not pursuant to intestate succession. For the purpose of establishing their interest in the prior trust(s), the purported children were entitled to present proof that they were the children of Mr. Rose and were not time barred. |
Davidson | Court of Appeals | |
Mike Locke and Cvan Avian v. The Estate of Thomas W. Schlater, et al. - Dissenting in Part and Concurring in Part
I respectfully dissent from the majority’s conclusion that the plaintiffs are not time barred to establish that they have standing to contest David Rose’s 2006 Trust Agreement. I fully concur with the affirmance of the dismissal of the other underlying cases. |
Davidson | Court of Appeals | |
David N. Halbrooks v. Jacobus Marinus Durieux
Holder of easement (dominant estate) brought suit against owner of land (servient estate) alleging interference with his use of the easement by the servient estate’s construction of a building on the easement. The trial court found that the servient estate’s actions did not constitute unreasonable interference with the dominant estate’s use of the easement for ingress and egress. Because the evidence does not preponderate against the trial court’s findings, we affirm. |
Hickman | Court of Appeals | |
Jeannie McFarland v. Brandon Bass
Mother of two children appeals the denial of her petition to modify the parenting plan, the increase of her child support obligation, and the award of attorney fees to the Father. We reverse the increase in Mother’s child support obligation; we affirm the judgment in all other respects. |
Giles | Court of Appeals | |
National Door & Hardware Installers, Inc. v. Hassan Mirsaidi et al.
A subcontractor filed this breach of contract action to recover damages against a general contractor for two types of damages: work performed but unpaid and damages resulting from delays caused bythe general contractor.The plaintiff alleged the general contractor breached the contract by failing to make the appropriate progress payments and otherwise withholding payments without cause. It further alleged that the general contractor failed to properly supervise the project and failed to maintain proper working conditions on the job site which caused the construction to drag on for nine months beyond the agreed-upon completion date. While suit was pending, the general contractor was terminated by the owner and a different contractor was hired to complete the project; the new contractor hired the plaintiff to complete the job. The plaintiff completed its work for which it was paid more than the balance owing on the subcontract.Following a bench trial,the courtfound the former general contractor had breached the subcontract but the plaintiff had failed to prove damages flowing from these breaches. The trial court specifically determined that the subcontractor recouped its damages for work performed but unpaid through the completion subcontract, and that it did not prove damages flowing from the delay of construction. The plaintiff appeals. Having determined that the evidence does not preponderate against the trial court’s findings, we affirm the trial court in all respects. |
Davidson | Court of Appeals | |
In Re Estate of Jane Kathryn Ross et al.
This is the second appeal of an action to recover, under either the theoryof unjust enrichment or a resulting trust, the value of improvements paid by the plaintiff for a house constructed on her son’s property. The plaintiff paid the construction costs to build a new home on her son’s land for both of them to reside. This action was commenced when the son refused to put his mother’s name on the deed after the house was constructed. Following the first trial, the trial court found that the plaintiff never intended to convey an inter vivos gift to her son, and, after considering the plaintiff’s alternative claims for relief, the court established a resulting trust in favor of the plaintiff in the amount of $417,000. In the first appeal, we ruled that a resulting trust was not an available remedy and remanded for further proceedings. On remand, the trial court awarded the estate a judgment against the son based on unjust enrichment. The son appeals again, this time contending the estate waived its unjust enrichment claim in the first appeal and that the estate did not prove the value of the improvements. We affirm. |
Davidson | Court of Appeals |
