David L. Morrow and Judy M. Wright v. Suntrust Bank, et al.
Appellants filed a complaint for declaratory judgment seeking to be named the sole heirs to trust residue. However, the Attorney General moved for summary judgment, claiming that a later trust document provided for a full disposition of the trust assets, and therefore, that no assets remained to which Appellants could be entitled. The trial court granted summary judgment, finding that the intent to leave no residue stated in the later document superseded the prior edition. On appeal, Appellants argue that intent is irrelevant without a determination of the legal efficacy of the trust documents, and that the trial court lacked subject matter jurisdiction to render an advisory opinion. We find that the trial court properly exercised subject matter jurisdiction in adjudicating the declaratory judgment. Additionally, we affirm the trial court’s denial of attorney fees and costs to SunTrust incurred at trial, and we decline to award SunTrust its attorney fees and costs incurred on appeal. |
Shelby | Court of Appeals | |
Depot Property, LLC and Terry Cox v. Town of Arlington, Tennessee
This is a zoning case. The homeowner purchased a house in an area zoned as single-family residential and applied to have the property rezoned for office use. The application was considered by the town legislative body. Some members of the legislative body recused themselves. A majority of the members present voted in favor of the rezoning application, but it did not receive a majority of the entire membership of the legislative body, including the members who recused themselves. Pursuant to T.C.A. § 13-7-204, the rezoning application was deemed to have failed. The homeowner then filed a petition for a common law writ of certiorari, asking that the trial court deem the rezoning application approved based on the favorable vote of the majority of the members who participated in the consideration of his rezoning application. The trial court granted the writ, deemed the rezoning application approved, and modified the legislative body’s decision to grant the homeowner’s application. The town appeals. We reverse, finding, inter alia, that an affirmative vote by a majority of the entire membership of the town legislative body was required for adoption of the rezoning application. |
Shelby | Court of Appeals | |
Donna Rowland v. Rishi K. Saxena, M.D.
State representative appeals dismissal of her suit to recover attorney fees incurred as a result of her former opponent’s contest of the election. The trial court held that the Tennessee Constitution and statutes governing election contests vest exclusive jurisdiction to decide contests for the office of state representative, and that, consequently, the court was without jurisdiction to determine the issue of costs and fees awardable under the statute. We hold that the chancery court correctly determined that it was without jurisdiction to decide issues arising under § 2-17-115. |
Rutherford | Court of Appeals | |
Markina Westmoreland et al. v. William L. Bacon, M.D. et al.
Plaintiffs appeal the summary dismissal of their medical malpractice claims against three physicians, an orthopedic surgeon, and two hematologists. In December 2004, Plaintiffs’ mother, who suffered from several medical conditions, underwent a total hip replacement and remained in the hospital under the care of several doctors for ten days. Nine days after surgery, her condition dramatically declined; she died the following day from a severe diffuse pulmonary and gastrointestinal hemorrhage. Plaintiffs filed suit alleging the physicians breached the standard of care for their respective specialties in the care of their mother. Each defendant filed a motion for summary judgment and each motion was supported by the affidavit of the defendant as an expert witness. Plaintiffs submitted an affidavit of their expert witness in response. The trial court ruled that Plaintiffs’ only expert was not a qualified witness under Tenn. Code Ann. § 29-26-115 and granted summary judgment to all three defendants. On appeal, Plaintiffs claim the trial court abused its discretion in finding that their expert witness was not qualified to testify. We affirm the trial court’s ruling that Plaintiffs’ expert was not qualified to testify under Tenn. Code Ann. § 29-26-115 and the summary dismissal of Plaintiffs’ claims. |
Davidson | Court of Appeals | |
Markina Westmoreland et al. v. William L. Bacon, M.D. et al. - Dissenting
I respectfully dissent from the holding that Dr. Sobel was not competent to opine as to whether one or more of the defendants deviated from the standard of care. |
Davidson | Court of Appeals | |
Ronald P. Boaz v. Rozanne Jackson, et al.
The plaintiff claimed that in 1997 he entered into a verbal partnership agreement with the defendant to open and operate the antique store that the plaintiff managed for the next twelve years. He further claimed that the defendant withheld profits and other benefits of the partnership from him, in violation of their agreement. The plaintiff accordingly asked the trial court to dissolve the partnership and to award him his share of the partnership assets. The defendant filed a Rule 12.02(6) motion to dismiss the plaintiff’s complaint for failure to state a claim. She denied that she had ever been in any sort of partnership relationship with the plaintiff and claimed, instead, that he was a salaried managerial employee-at-will of her solely-owned corporation. The trial court granted the defendant’s motion. The allegations in the complaint, which we must take as true, state a claim for relief. Additionally, material extraneous to the complaint was submitted and presumably considered by the trial court, requiring that the motion be treated as one for summary judgment. Disputes of material fact exist in the filings, precluding the grant of summary judgment. |
Davidson | Court of Appeals | |
In the Matter of: Lillian M, DOB 08/08/06, a minor child under the age of Eighteen (18) years old, State of Tennessee, Department of Children's Services, v. TM and CM
In this action, the Trial Court ordered the Department of Children's Services which had custody of the minor child, to furnish the parents with medical information, including video tapes. A written response was not made by the Department and the video tapes were not obtained and furnished to the parents. The Trial Court held the Department in willful contempt of the Court and entered sanctions as punishment. The Department has appealed. We hold that the record does not establish a basis to hold the Department in willful contempt of Court and we reverse the Trial Court's contempt judgment. |
Hawkins | Court of Appeals | |
Kay Sauer v. Donald D. Launius dba Alpha Log Cabins
Kay Sauer (“the Plaintiff”) sued Donald D. Launius (“the Defendant”) on a civil warrant in general sessions court alleging, among other things, that the Defendant did business as Alpha Log Cabins. The Defendant appealed an adverse judgment in general sessions to the trial court. In the trial court, the Defendant, by counsel, filed a motion to dismiss, asserting that the Plaintiff had sued the wrong party as the contract upon which she had sued was with Alpha Log Cabin Sales and Rentals, Inc. (“the Agent”). The case was set for hearing on April 13, 2009. In the meantime, between the filing of the motion to dismiss and the hearing date, the Defendant’s attorney withdrew. The Defendant failed to appear on the hearing date, and the court entered judgment in the Plaintiff’s favor. The Defendant filed a motion to set aside pursuant to Tenn. R. Civ. P. 60.02 supported by his affidavit in which he stated that he did not receive notice of the hearing date. The trial court denied the motion to set aside. The Defendant appeals. We remand the case to the trial court with instructions to enter an order vacating the court’s judgment. |
Sevier | Court of Appeals | |
Robert E. Davis et al. v. Crawford L. Wiliams et al.
Robert E. Davis and wife, Angela K. Davis (“the Buyers”), filed this action against Crawford L. Williams and wife, Betty Jo Williams (“the Sellers”), to enjoin them from taking possession of real property that the Sellers had sold the Buyers and re-acquired through foreclosure. The Buyers also sought to set aside the foreclosure sale. The Sellers moved to dismiss and then for summary judgment on the ground that a final judgment against the Buyers in an unlawful detainer action in general sessions court barred the present action under principles of res judicata and collateral estoppel. The trial court granted summary judgment in favor of the Sellers. The Buyers appeal. We affirm. |
Loudon | Court of Appeals | |
Tina J. Parks v. Mid-Atlantic Finance Company, Inc.
Tina J. Parks (“the Buyer”) purchased an automobile on an installment payment plan and signed a “Retail Installment Contract and Security Agreement” (“the Installment Contract”) pledging the vehicle as collateral to the seller-lender, Chris Yousif dba Quality Motors (“the Seller”). Mid-Atlantic Finance Company, Inc. purchased the Seller’s rights in the Installment Contract. Mid-Atlantic later informed the Seller when the Buyer fell behind on her payments. The Seller repossessed the vehicle. Mid-Atlantic sold its rights under the Installment Contract to the Seller. The Buyer then filed this action against the Seller and Mid-Atlantic on various theories. The trial court granted Mid-Atlantic summary judgment and dismissed the Buyer’s claim against the company, finding that, as the purchaser of the Installment Contract, it had no duty to the Buyer. The Buyer appeals. We affirm. |
Knox | Court of Appeals | |
Tennessee American Water Company v. The Tennessee Regulatory Authority, et al.
The Tennessee American Water Company petitioned the Tennessee Regulatory Authority to approve a revision to the existing rates it charges its customers for water. The Authority authorized a revision in the existing tariffs but made several rulings adverse to the plaintiff. Plaintiff has appealed numerous issues. On appeal, we affirm the rulings of the Authority, except its ruling which only allowed plaintiff to recover one-half of the rate case expenses. We hold that ruling was arbitrary and we require the Authority to pay the full amount of the rate case expenses claim. |
Court of Appeals | ||
Kathy Young, et al. v. First Bank of Tennessee
Kathy Young (“the plaintiff”) stepped backward onto an elevated curb as she opened the driver’s door of her vehicle to leave the parking lot of First Bank of Tennessee. She was injured when she tripped over the curb and fell into the shrubbery that bordered the parking lot. She and her husband filed this action alleging that First Bank was negligent 1 in creating or maintaining a dangerous condition. First Bank filed a motion for summary judgment which the trial court granted. The plaintiff appeals. We affirm. |
Rhea | Court of Appeals | |
Trecia Gayle Watson v. Bradley County School Board, et al.
Trecia Gayle Watson (“Plaintiff”) formerly was employed as a teacher with the Bradley County School System. In 2002, Bob Taylor (“Taylor”), the Director of Schools for the Bradley County School System, instituted disciplinary charges against Plaintiff seeking to have her employment terminated. Plaintiff voluntarily resigned prior to completion of the disciplinary proceedings. In 2007, pursuant to a grand jury subpoena from the criminal court in Whitfield County, Georgia, Taylor sent all information pertaining to the disciplinary charges and other information in Plaintiff’s personnel file to the criminal court. Plaintiff, proceeding pro se, sued for defamation and filed suit against Taylor, the Bradley County School Board (the “School Board”), and various other defendants. All of the defendants filed a motion for summary judgment and, thereafter, sought various forms of sanctions against Plaintiff for numerous alleged violations of Tenn. R. Civ. P. 11. The Trial Court expressly declined to Rule on the motion for Rule 11 sanctions, providing instead for this Court to dispose of the defendants’ Motion for Rule 11 sanctions if Plaintiff appealed. The Trial Court then granted the defendants’ motion for summary judgment. Plaintiff appeals. We conclude that because the Trial Court has yet to rule on the defendants’ motion for Rule 11 sanctions, there is no final judgment. Accordingly, we dismiss the appeal and remand this case for further proceedings consistent with this Opinion. |
Bradley | Court of Appeals | |
Michelle Forgey-Lewis vs. John Paul Lewis, Sr.
Prior to their marriage, John Paul Lewis, Sr., (“Husband”) and Miechelle Forgey-Lewis (“Wife”) signed an antenuptial agreement. In this divorce proceeding filed by Wife, the parties agreed that the antenuptial agreement is valid and enforceable but they disagreed sharply as to its application. The trial court awarded Wife a divorce and alimony in futuro of $3,000 per month retroactive to the date of the filing of the complaint. Wife collected approximately $5,000 of the accrued alimony through garnishments. Husband appeals, challenging the alimony award as well as the garnishments. Wife contends the trial court erred in allowing Husband an offset of approximately $80,000 against her entitlements under the court’s orders for payments made by him on joint debts. We affirm the judgment of the trial court except for the garnishments. We quash the garnishments and order the return of funds collected through them to the garnishee. |
Bradley | Court of Appeals | |
In Re Destiny H. A. A. M. M. M., et al.
The State of Tennessee Department of Children’s Services (“DCS”) filed a petition seeking to terminate the parental rights of Christina M. (“Mother”) to her daughters Jazsman (d.o.b. 5/28/08) and Destiny (d.o.b. 11/18/09). DCS was excused from being 2 required to make reasonable efforts to assist Mother to accomplish the goal of reunification because she has previously had children removed involuntarily from her custody. Tenn. Code Ann. § 37-1-166(g)(4). The trial court found and held that clear and convincing evidence existed on the ground of mental incompetence to terminate Mother’s parental rights and that termination was in the best interest of the children. Mother appeals, asserting that DCS should have been required to make reasonable efforts to maintain her daughters in her care. We affirm. |
McMinn | Court of Appeals | |
Deutsche Bank National Trust Co. v. R. D. Aldridge, et al.
Bank purchased property at a foreclosure sale, and a tenant of the previous owner continued to occupy the property after the sale. The deed of trust executed by the previous owner provided that if the property was sold, any person holding possession of the property through the borrower would either surrender possession of the property or become a tenant at will of the purchaser. Bank filed a detainer warrant against the tenant and was awarded possession of the property by the general sessions court. On appeal, the circuit court also awarded possession to the Bank. The tenant appeals. For the following reasons, we affirm. |
Shelby | Court of Appeals | |
Richard Swecker, et al., v. Steven Michael Swecker, et al., and, Dinah Sluder, et al., In Re: Estate of Joseph James Swecker, Steven Swecker, et al., v. Richard Allen Swecker
Plaintiffs brought this action to establish a partnership with the deceased against the estate's personal representative and others. Defendants answered, denying the allegation that a partnership existed, and filed a counter-complaint, asserting the estate should be reimbursed for plaintiffs' mismanagement of the farm, and for monies the plaintiffs removed from the estate's bank account. Following an evidentiary hearing, the Trial Court held that deceased and plaintiff had entered into a partnership and that the partnership would be wound up by the Court and the partnership assets distributed. Also, the Trial Court held that plaintiffs would be required to pay rent on the house they occupied on the farm for several years. On appeal, we affirm the finding that a partnership existed, but reverse the Trial Court's holding that plaintiffs owed the estate rent for occupancy of the house on the farm. We remand, with directions to the Court to wind up the partnership. |
Greene | Court of Appeals | |
Estate of Carolyn A. Montgomery v. Daniel Kueter, M.D.
We granted the application of Daniel Kueter, M.D. (“Defendant”) for a Tenn. R. App. P. 9 Interlocutory Appeal on the issue of whether the Trial Court erred in reinstating this case to its active docket after it had been dismissed without prejudice over a year earlier. We find and hold that although plaintiff was not entitled to relief under Tenn. R. Civ. P. 60.02, the Trial Court did not err when it granted Plaintiff’s motion to enter an agreed order nunc pro tunc reinstating this case. We, therefore, affirm the Trial Court’s order. |
Hamilton | Court of Appeals | |
Shelby County Health Care Corporation, d/b/a Regional Medical Center v. John Baumgartner, Elizabeth Baumgartner, a/k/a Daray Baumgartner, Nationwide Mutual Insurance Company, and Hartford Accident and Indemnity
This appeal involves the impairment of a hospital lien. The individual defendant was treated at the plaintiff hospital for injuries sustained in an automobile accident caused by a thirdparty tortfeasor. The patient incurred substantial medical expenses. The hospital filed a hospital lien for the amount of the patient’s medical expenses. Subsequently, the patient received insurance proceeds from his own insurance company under his uninsured motorist coverage, and another payment from the tortfeasor’s insurance company. Nothing was paid to the plaintiff hospital. The hospital filed this lawsuit against both insurance companies for impairment of its hospital lien. The parties filed motions for summary judgment. The trial court granted in part the hospital’s motion for summary judgment. Against the patient’s own insurance company, the hospital was awarded one-third of the monies the patient received. Against the tortfeasor’s insurance company, the hospital was awarded an amount equal to the policy coverage limit. The hospital now appeals, arguing that it was entitled to recover from both insurance companies jointly the reasonable cost of the hospital services rendered to the patient. The insurance companies also appeal, arguing that there was no impairment of the lien and that, if there was impairment, the hospital’s recovery should have been limited to one-third of the payments made to the patient. We affirm in part and reverse in part, finding that the hospital’s lien was valid and was impaired, but that the hospital can recover only for the damages caused by the impairment of its lien. |
Shelby | Court of Appeals | |
Lesa C. Williams, et al. v. Renard A. Hirsch, Sr.
This application for an interlocutory appeal concerns a client’s standing to seek a declaratory judgment regarding the amount of fees to be paid to one of the three attorneys who represented her in a personal injury suit. The trial court dismissed the client’s complaint for lack of standing but granted the client permission to appeal pursuant to Tenn. R. App. P. 9. We concur with the trial court that an interlocutory appeal will prevent needless, expensive and protracted litigation. We also conclude that the client has a real interest in the litigation, and we thus reverse the trial court’s order dismissing the client’s complaint. |
Davidson | Court of Appeals | |
Erda M. Gonzalez v. Neft Ali Gonzalez
Mr. Gonzalez filed a petition to alter his final divorce decree, alleging that the decree violates federal law by allowing the wife to receive more than 50% of his military retirement. The trial court denied relief. Mr. Gonzalez appealed. We affirm, holding that federal law does not limit Tennessee trial courts to awarding a maximum of 50% of a former service member’s retirement to the ex-spouse. |
Montgomery | Court of Appeals | |
Judith Anne Shaw v. Jason Patrick Shaw
In this divorce case, we granted the request of Jason Patrick Shaw (“Father”) for a Tenn. R. App. P. 10 extraordinary appeal on three issues: (1) whether the Trial Court erred when it refused to grant his request for access to his older daughter’s counseling records with a licensed clinical social worker; (2) whether the Trial Court properly prohibited Father from taking this daughter’s deposition, and (3) whether the Trial Court erred when it refused Father visitation with any of the parties’ three children. As to the first issue, we remand this case to the Trial Court for a determination of whether furnishing the social worker’s records would be against the daughter’s best interest, as discussed more fully in this Opinion. We vacate the Trial Court’s refusal to allow Father to depose the daughter. Finally, we vacate the Trial Court’s refusal to allow Father any meaningful visitation and remand for the Trial Court to determine an appropriate supervised visitation schedule. |
Hamilton | Court of Appeals | |
Mark W. Urlaub, as Next of Kin and Executor of the Estate of Bertha Worley Urlaub v. Select Specialty Hospital-Memphis, Inc., et al.
Plaintiff filed this medical battery suit on behalf of his deceased mother and named as defendants the nephrologist who ordered an allegedly unauthorized hemodialysis procedure, another treating physician, and the hospital where she was treated. The trial court granted summary judgment to the treating physician who did not order the procedure and to the hospital. Plaintiff appeals. We find that both of these defendants were entitled to summary judgment and therefore affirm the trial court’s decision. |
Shelby | Court of Appeals | |
Dan Kenneth Kelly v. Sonya Frances Kelly
In this post-divorce dispute, the trial court denied the petitions of both parents to modify the parenting time but granted the mother’s petition to modify child support. We affirm the trial court’s decision with respect to parenting time but reverse and remand for a proper determination regarding modification of child support. |
Robertson | Court of Appeals | |
In Re: Spencer E.
Father filed a petition to relocate with the parties’ minor child, and the trial court denied his petition. On appeal, Father argues that the trial court made evidentiary and procedural errors necessitating vacating its decision, that the trial court’s decision denying his petition to relocate was erroneous, and that the trial court erred in declining to award him his attorney fees in defending against Mother’s petition for dependency and neglect. We affirm the decision of the trial court in all respects. |
Williamson | Court of Appeals |
