Rondal Akers, et al. v. Prime Succession of Tennessee, Inc, et al.
This case is before us for the second time on appeal. In our first Opinion, Akers v. Buckner- Rush Enterprises, Inc., we held, inter alia, that Rondal D. Akers, Jr. and Lucinda Akers had standing to pursue their claims against T. Ray Brent Marsh; Marsh’s former business, Tri- State Crematory (“Tri-State”); and Buckner-Rush Enterprises, Inc. Akers v. Buckner-Rush Enterprises, Inc., 270 S.W.3d 67, 73-75 (Tenn. Ct. App. 2007). We remanded the case for trial. The Trial Court entered judgment upon the jury’s verdict finding that Marsh had intentionally inflicted emotional distress upon the Akers, that Marsh had violated the Tennessee Consumer Protection Act, and that Marsh had violated a bailment responsibility to the Akers. The jury awarded Dr. Akers $275,000 in damages and Mrs. Akers $475,000 in damages. Marsh filed a motion for new trial or for judgment notwithstanding the verdict. After a hearing, the Trial Court granted Marsh a partial judgment notwithstanding the verdict reversing the judgment for the claims under the Tennessee Consumer Protection Act and bailment, and denied Marsh’s motion as to the remaining claims. Marsh appeals to this Court. The Akers raise an issue on appeal regarding whether the Trial Court erred in granting judgment notwithstanding the verdict and dismissing their claims under the Tennessee Consumer Protection Act and bailment. We affirm the judgment in its entirety. |
Bradley | Court of Appeals | |
State of Tennessee ex rel. Bettye Grooms, et al. v. The City of Newport, Tennessee
The City of Newport (“Newport”) sought to annex certain properties in Cocke County. A number of affected parties (“the Plaintiffs”) objected to the annexation and filed a complaint against Newport in the Chancery Court for Cocke County (“the Trial Court”). The Trial Court held that the Plaintiffs had failed to carry their burden of proving that the annexation was unreasonable or that the health, safety and welfare of the relevant citizens would not be materially retarded without the annexation. The Plaintiffs then sought to amend their complaint to allege that Newport was barred from annexation because of Newport’s allegedly having defaulted on a prior plan of services from an earlier annexation. The Trial Court denied the Plaintiffs’ motion to amend on the basis, in part, that the issue was not timely raised, pled, or tried. The Plaintiffs appeal. We affirm the udgment of the Trial Court. |
Cocke | Court of Appeals | |
Barbara A. Lynch, deceased, by her sister and next of kin, Celine Hayes, and Celine Hayes as an individual v. Loudon County, Tennessee, et al.
In this wrongful death action, plaintiff alleged that deceased was involved in a one car accident and the investigating officer, after her car was removed from the guardrail by the wrecker, allowed her to continue driving when he knew or should have known that she was impaired and was a danger to herself, and he violated his duties to her and shortly thereafter she had yet another one-vehicle accident which resulted in her death. The Trial Court, responding to defendants' motion for summary judgment, found that the public duty doctrine applied and if the officer did undertake to protect deceased, she did not rely upon his undertaking. He granted defendants summary judgment. On appeal, we hold that under the public duty doctrine, plaintiff owed no specific duty to deceased, unless he undertook to assume such duty. We hold that there is disputed material evidence as to whether he assumed such duty to deceased but discontinued his aid and protection to deceased which left her in a worse position than she was before he intervened. We reverse the summary judgment and remand for further proceedings consistent with this Opinion. |
Loudon | Court of Appeals | |
Jacqueline G. Furlong v. Kevin Keane Furlong
Kevin Keane Furlong (“Husband”) is the estranged husband of Jacqueline G. Furlong(“Wife”). Wife secured an order of protection in Sevier County that generally prohibits Husband from committing any untoward act against Wife and having any contact with her. As later amended in the Knox County Circuit Court (“the trial court”), the order also states that Husband could come to the marital residence to repair Wife’s automobile. In addition, the court identified two dated time periods, and, with respect to each period, specified which of the parties would have the use of the “inside” of the marital home and when they would have that use, and which would have the use of the “outside,” i.e., presumably the parties’ realty surrounding the house, and when. When Husband came to the residence to repair Wife’s automobile at 7:10 p.m., which, according to the order of protection, was arguably ten minutes beyond the time within which the vehicle was to be repaired, Wife filed a motion asking that he be held in contempt for not repairing the vehicle and for coming about her outside the allowed time frame. The trial court held Husband in criminal contempt, sentenced him to ten days in jail, and extended the order of protection for five years. He was not to be released from jail unless and until he complied with a statute requiring him to post a bond in the minimum amount of $2,500. He served his sentence and obtained a stay of the bond requirement pending appeal. Husband appeals challenging the finding of contempt as well as the constitutionality of the statutory bond requirement. The Tennessee Attorney General ade an appearance on appeal to support the constitutionality of the statute. We reverse, in its entirety, the last order of protection and judgment of criminal contempt entered by the trial court on November 23, 2010. It is held for naught. In view of our reversal, we do not find it necessary or appropriate to reach the constitutional issues. |
Knox | Court of Appeals | |
Triangle American Homes v. Samuel B. Harrison, et al
In this indemnity case, Jere Krieg (“Builder”), through Triangle American Homes, Inc., initially filed a complaint for attachment and damages against Samuel and Lauren Harrison (collectively “the Harrisons”) relating to the construction of a modular home. When the Harrisons filed a counterclaim, arguing that Builder had failed to perform pursuant to their contract, Builder brought a third-party complaint against All American Homes of Tennessee, LLC (“Seller”), alleging that Seller should indemnify Builder. Builder and the Harrisons entered into a settlement agreement. In the remaining suit for indemnification, Seller argued that Builder was not entitled to indemnity because the damages and losses sustained by Builder were a result of Builder’s actions. Following a bench trial, the trial court held that Builder was entitled to damages in the amount of $45,000 and attorney fees in the amount of $45,000, for a total award of $90,000. Seller appeals. We modify the award of attorney fees to $18,084 and affirm the decision of the trial court in all other respects. |
Loudon | Court of Appeals | |
Kristie Jackson v. Williamson & Sons Funeral Home, et al
In this negligence case, Kristie Jackson sued Williamson & Sons Funeral Home (the “Funeral Home”) for negligence and negligent infliction of emotional distress following the burial of her mother, Edna Louise Lewis. Ms. Jackson alleged that the Funeral Home was negligent in failing to delay the burial after learning that she objected to the arrangements that had been made and that the Funeral Home’s actions caused her emotional distress. The Funeral Home moved for summary judgment, and the trial court granted the motion, finding that the Funeral Home had affirmatively negated an essential element of Ms. Jackson’s claim by showing that it did not owe a duty to her under the circumstances of the case. Ms. Jackson appeals. We affirm the decision of the trial court. |
Hamilton | Court of Appeals | |
Leroy Jackson, Jr. v. Purdy Brothers Trucking Co., Inc., et al
This appeal arises from a tractor-trailer (“truck”) collision involving two professional drivers, Leroy Jackson, Jr., who was driving as an owner operator for USA Trucking, and Blair B. Greene, who was employed by Purdy Brothers Trucking Company, Incorporated (“PBTCI”) and Loudon County Trucking (“LCT”), both formerly doing business as Purdy Brothers Trucking (“PBT”). Mr. Jackson’s truck was repossessed shortly after it was repaired, and he filed suit against Mr. Greene, PBTCI, and LCT (collectively “Trucking Company”) for property damage, loss of income, lost equity in his truck, incidental expenses, and punitive damages. Trucking Company filed a motion for partial summary judgment. 1 The trial court granted the motion, in part, holding that Trucking Company was not liable for the lost equity in the truck but that the case could proceed on the remaining issues. Trucking Company made an offer of judgment, which was accepted by Mr. Jackson and set forth in the court’s final order. Mr. Jackson appeals, contending that the court erred in granting partial summary judgment. We dismiss the appeal because Mr. Jackson accepted the offer of judgment without reserving the right to appeal. |
Knox | Court of Appeals | |
Terry Nichols v. Tennessee Department of Corrections, et al.
This is an appeal from a final judgment dismissing an inmate’s petition for common law writ of certiorari. Because the inmate did not file his notice of appeal with the trial court clerk within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal. |
Wayne | Court of Appeals | |
Marceline Lasater v. Kenneth J. Hawkins, et al.
A contract for the sale of a sixty-four acre tract of land provided that a vacant house on the tract and the lot immediately surrounding it would automatically revert to the seller if the buyers did not install a water line across the property within a year of the contract’s execution. The same condition was set out in the warranty deed. The buyers failed to install the water line, but the seller, a Texas resident, did not immediately attempt to retake possession of the house and lot. Five years after the contract was signed, the seller filed a “notice of automatic reverter of title,” followed by a declaratory judgment suit to quiet title and to recover damages. The trial court granted partial summary judgment to the seller, ruling that the contract and the deed created a fee simple determinable and, therefore, that ownership of the disputed property reverted to her by operation of law one year after the contract of sale was executed. A hearing on damages resulted in an award to the seller of about $142,000 in compensatory damages, which included income that the buyers had collected from renting out the house prior to the filing of the notice of reverter. Buyers contend on appeal that the estate created by the contract of sale was not a fee simple determinable, but rather a fee simple subject to a condition subsequent, a form of future interest under which the property does not revert to the seller until the seller takes some action to retake possession of the property. Such an interest would result in a much smaller award of damages against the buyers under the circumstances of this case. We affirm the trial court’s holding that the contract of sale created a fee simple determinable, but we modify its award of damages to correct an error. |
Wilson | Court of Appeals | |
Tyson Foods (Re: Sandra Gibson) v. Tennessee Department of Labor & Workforce Development, Workers' Compensation Division
Employer filed a petition for common law writ of certiorari to challenge the order of the Tennessee Department of Labor, issued pursuant to the Request for Assistance protocol, that it provide temporary disability and medical workers’ compensation benefits. Upon the motion of the Departmentof Labor,the trial court dismissed the petition on two grounds: that the court lacked subject matter jurisdiction to review the Department’s decision and that the employer possessed another adequate remedy at law under Tenn. Code Ann. § 50-6238(b)(6). We affirm. |
Davidson | Court of Appeals | |
Lori Ann Stiles Estes v. Randy Lee Estes
The trial court granted a divorce to the parents of three minor children. The permanent parenting plan incorporated into the decree of divorce designated the mother as the primary residential parent of the parties’ twin sons and younger daughter and granted the father standard visitation. The parties lived in Warren County prior to the divorce, in close proximityto the school the children attended. Two years after divorce, Father filed a petition to modify the permanent parenting plan, and Mother moved to another county. The children all testified in chambers that they wanted to spend half the time with their father and to remain enrolled in the Warren County schools. The court concluded that there had been a material change of circumstances and that it was in the best interest of the two boys that their parenting be shared equally between the parties, with custody alternating weekly. The residential plan for the nine year-old girl was left unchanged. Mother argues on appeal that the trial court erred in ruling that there had been a material change of circumstances, and she asks us to restore the previous parenting plan. We affirm the trial court, but modify the judgment to designate Father as the primary residential parent of the parties’ sons. |
Warren | Court of Appeals | |
Berchie Marie Wiser v. Raymond Winfred Wiser
The husband and wife had separated, and the wife then filed for an Order of Protection against the husband, which was granted by the Trial Court. The wife then filed a Complaint for divorce, which was ultimately granted and in the final divorce decree the Trial Court incorporated the Marital Dissolution Agreement which contained a mutual restraining order which restrained the parties from coming about, harassing or threatening or assaulting each other. Subsequently, the wife filed a motion in this case to extend the Order of Protection, and after an evidentiary hearing, the Trial Court extended the Order of Protection for five years, as allowed by statute. The husband appealed, and on appeal argues that the divorce decree, voided the Order of Protection. We hold that the Trial Judge acted in accordance with the statute in extending the Order of Protection, and the divorce decree did not remove jurisdiction from the Trial Court to issue the extended Order of Protection. |
Smith | Court of Appeals | |
In Re: Askia K. B.
This appeal concerns the termination of parental rights. While the appellant father was incarcerated, the child was taken into protective custody because of the mother’s drug use. The mother surrendered her parental rights. The father remained incarcerated. After a trial, the father’s parental rights were terminated on several grounds, including failure to comply with the permanency plan. The father appeals, and on appeal the State waives all grounds except for failure to comply with the permanency plan. After review of the record, we conclude that this ground for termination was not established because the record does not show clear and convincing evidence that the Department of Children’s Services made reasonable efforts to assist the father and to reunify parent and child. Therefore, we reverse. |
Shelby | Court of Appeals | |
In Re: Tiphani H.
This is a parental termination case. The juvenile court terminated the parental rights of mother and father on the grounds of persistence of the conditions that required the child’s removal and substantial noncompliance with the terms of the permanency plans. Both parents appealed. The mother and father argue the Department of Children’s Services did not clearly and convincingly prove grounds for termination of parental rights and did not clearly and convincingly prove termination of parental rights was in the best interests of the child. The mother also argues the trial court erred in determining she waived her right to appear at the termination hearing. We affirm. |
Hamilton | Court of Appeals | |
W. Allen Barrett v. Giles County, et al.
The losing candidate filed an election contest alleging that the election commission made a mistake byplacing the candidate who eventually won the election on the ballot. The election commission admitted iterred in determining thatthe candidate who later won had a sufficient number of valid signatures on her nominating petition. The trial court found that the losing candidate failed to carry his burden of proof and dismissed the case. He appealed. We affirm, finding that this was not a proper election contest and that a challenge to a person’s appearance on a ballot should ordinarily be filed before the election. |
Giles | Court of Appeals | |
In Re: Brittany M. A.
The petition filed by the father asked that the father become primary residential parent of the child, and that child support be set pursuant to Tennessee child support guidelines. At an evidentiary hearing, the Trial Judge granted the father temporary custody of the child and gave the mother parenting time with the child on two weekends each month. The father's obligation of child support was suspended, and the Trial Court set the matter for further hearing five months later. At the conclusion of that hearing the Trial Court determined that the mother's income was "not less than $90,000.00 per year" and ordered child support and a back judgment pendente lite for child support. The mother appealed. We hold the Trial Court's Judgment should be modified because the evidence does not support income at the level set by the Trial Court. We modify the amount downward to $52,000.00 a year and remand for the purposes of establishing child support in accordance with these guidelines. |
Wilson | Court of Appeals | |
In Re: Estate of Ina Ruth Brown
This appeal arises from a dispute concerning a contract to execute mutual wills. Ina Ruth Brown(“Mrs. Brown”), and her husband, Roy Brown, Jr. (“Mr. Brown”), executed mutual wills as agreed by contract. After Mr. Brown’s death, Mrs. Brown executed a new will. Mrs. Brown died. Rockford Evan Estes (“Defendant”), Mrs. Brown’s son, submitted the new will for probate. Mr. Brown’s adult children, Roy E. Brown, III, Joan Brown Moyers, and Donna Brown Ellis (“the Plaintiffs”) filed this will contest suit in the Chancery Court for Knox County, Probate Division (“the Trial Court”), contesting the new will on the basis that, among other things, the mutual wills between Mr. Brown and Mrs. Brown were irrevocable. Both the Plaintiffs and Defendant filed a Motion for Summary Judgment. The Trial Court denied Defendant’s motion, granted the Plaintiffs’ motion for summary judgment, and voided the new will created by Mrs. Brown. Defendant appeals. We hold that the Trial Court did not err in denying Defendant’s motion for summary judgment because the Trial Court did have subject matter jurisdiction to hear this will contest based on this breach of contract claim. We further find that the Trial Court did not err in granting the Plaintiffs’ motion for summary judgment after also finding that the June 13, 2002 contract to execute mutual wills was supported by adequate consideration. We affirm the judgment of the Trial Court. |
Knox | Court of Appeals | |
State of Tennessee, ex rel. Mary Tucker v. Randy Simmons
When Father failed to pay child support as ordered, the State filed a petition for contempt against him. The juvenile court found him in civil contempt based upon his willful nonpayment. We affirm. |
Lauderdale | Court of Appeals | |
Michael G. McCall v. Jennifer Sue McCall a/k/a Jennifer Sue Jordan
Mother and Father, the divorced parents of two minor children, filed a joint motion in the trial court to modify the permanent parenting plan. The trial court denied the joint motion and Mother appeals. |
Crockett | Court of Appeals | |
In Re: Angelica S.
This is a termination of parental rights case focusing on Angelica S. (“the Child”), the minor daughter of Irene S. (“Mother”) and Jose S. “Father”). When the Child was five, Mother left her with Father. Mother never returned. Father, an illegal immigrant, subsequently married Melissa S. (“Stepmother”) and made her the Child’s legal custodian. In 2009, the Department of Children’s Services (“DCS”) took custody of the Child after the Child alleged that Stepmother had abused her. The following year, DCS filed a petition to terminate the parental rights of Mother and Father. Following a bench trial, the court granted 1 the petition after finding, by clear and convincing evidence, that both parents had abandoned the Child by failing to visit her in the relevant four-month time period and that termination is in the Child’s best interest. Father appeals. We affirm. |
Roane | Court of Appeals | |
Kimberly L. Smith v. Gary E. Mills, M.D., et al
This is an appeal from a jury verdict in a medical malpractice case. The jury entered a judgment in favor of the defendants. The plaintiff has appealed. We affirm the trial court’s judgment. |
Hamilton | Court of Appeals | |
In Re: Bobby D. Green
A pro se litigant failed to pay the court costs resulting from complaints he had filed, and the Circuit Court entered an order in 2006 that allowed it to refer future complaints by that litigant to a Special Master for screening. The court’s order directed the Special Master to determine whether the court costs had been satisfied and to file a written report recommending whether the complaint should be allowed to proceed or be dismissed. The trial court was empowered to dismiss the complaint without a hearing if the recommendation of the Special Master was that the case not proceed. In the appeal before us, the litigant appealed from a general sessions judgment that denied him any relief for the purchase of a lawn mower that he alleged was defective. The Special Master’s investigation revealed that the litigant had failed to pay any of the court costs previously assessed against him and that additional costs had accrued since then. In accordance with the Special Master’s recommendation, the court dismissed his complaint. We find that the trial court acted within its authority, and we accordingly affirm. |
Davidson | Court of Appeals | |
Ashley King v. Kenneth J. Wulff
In this dispute over child support arrearage, father argues that the trial court erred in increasing the amount of his monthly payment. We affirm the trial court’s decision. |
Williamson | Court of Appeals | |
Joe Burnette, Individually and Next Friend of Sons, Joshua Burnette, and Jacob Burnette v. Joel Porter, Jr., et al.
This is an appeal from a grant of summary judgment in favor of Appellees on claims of invasion of privacy by intrusion upon seclusion, and conspiracy to commit that tort. Appellees were invitees, and there is no evidence that they exceeded the scope of the invitation despite the fact that Appellees had ulterior motives in procuring admission. Appellants failed to show that Appellees’ actions were objectionably unreasonable or highly offensive, which are essential elements of the invasion of privacy tort. Furthermore, in the absence of an underlying tort, there can be no conspiracy to commit the tort. Affirmed. |
Shelby | Court of Appeals | |
Marsha Bordes v. Julian Bordes
Husband filed a petition to modify the amount of alimony in futuro set in the divorce decree, asserting that health problems and a decrease in his income arising after the divorce constituted a substantial and material change in circumstances that warranted a reduction in the amount of alimony. Husband appeals the denial of the petition and award of attorneyfees to Wife. Finding that Husband was entitled to modification and that the award of attorney fees was inappropriate, we reverse the judgment of the trial court and modify the award of alimony. |
Williamson | Court of Appeals |
