Mid-America Apt. Communities vs. Country Walk W2002-00032-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Floyd Peete, Jr.
Plaintiff filed suit for damages to ponds on its property caused by silt flowing from upstream property under development by Defendants. The trial court found that the suit was timed barred by the three year statute of limitations applicable to causes of actions for injuries to property and accordingly entered judgment in favor of the defendants. We reverse and remand.
Kubota Credit vs. Doug Tillman W2002-00885-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Joseph H. Walker, III
The plaintiff creditor in this case filed suit to recover a tractor that was subject to a security agreement and was pawned to the defendant pawnbroker. The court below awarded summary judgment to the creditor. The pawnbroker appeals, claiming the creditor's security agreement was not properly perfected, and that the creditor therefore does not have a superior right to possession of the tractor. We find issues of material fact exist regarding whether the security agreement was perfected, whether the pledgor had authority to pawn the tractor, and whether the pawn transaction was entered into in good faith. We reverse summary judgment and remand.
Tipton
Court of Appeals
First Citizens Nat'l Bank for Will Wray vs. Janice Wray W2002-00525-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Lee Moore
This case involves a trust. The decedent established a trust in his will. His son-in-law and a bank were designated as co-trustees. A parcel of property with a home was placed into the trust. The trust allowed one of the beneficiaries, the decedent's grandson, and his wife to live in the house at no charge. The beneficiary and his wife divorced, and as part of their marital dissolution agreement, the beneficiary gave his ex-wife his possessory interest in the home, at no charge. The son-in-law/trustee died, leaving the bank as the sole trustee. The bank required the ex-wife to begin paying rent; she declined. The bank then filed the instant lawsuit against the ex-wife for past rent from the time they first requested rent from her, and also a declaratory judgment permitting the bank to sell the home. The trial court found that the trustees ratified the terms of the MDA between the beneficiary and the ex-wife, allowing her to remain in the home rent-free until the trust expired. The bank appeals. We reverse, finding that the trustees could not ratify the MDA, a contract to which the trust was not a party.
Lake
Court of Appeals
Virginia Abernethy v. Robert S. Brand M2002-00274-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Stella L. Hargrove
This is a malicious prosecution case. In the underlying case, plaintiff was sued by the defendants herein seeking recovery of damages for plaintiff's alleged fraud and embezzlement. In a bench trial, judgment was entered for plaintiff. Plaintiff filed the instant case alleging malicious prosecution. Defendants raise the defense of advice of counsel and their motion for summary judgment was granted. Plaintiff has appealed. We affirm.
Lawrence
Court of Appeals
Jeremie Sparrow vs. John Sparrow W2001-01290-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Joe C. Morris
This is a child support case. Although Mother received $4000 a month in rehabilitative alimony, the trial court set her child support obligation at nothing. Because the trial court did not fully set out its reasoning for this deviation from the Child Support Guidelines as required by statute, we reverse and remand.
Madison
Court of Appeals
Jacqueline McKinley vs. Samuel Simha W2001-02647-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: George H. Brown
Patient brought medical malpractice action against physician and medical group for complications that allegedly arose from injury to patient's right ureter suffered during total abdominal hysterectomy performed by defendant physician. The trial court denied defendants' Motion for Directed Verdict on the issues of cause and permanency of patient's condition. The trial court entered judgment on jury verdict for patient and subsequently awarded prejudgment interest to patient. Physician and medical group appealed. We affirm the trial court's denial of the directed verdict motion and its judgment on the jury verdict, and reverse the court's award of prejudgment interest.
Shelby
Court of Appeals
Mark VII Trans. vs. Joseph Belasco W2002-00450-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Kay S. Robilio
This appeal arises from a declaratory judgment action filed by Mark VII Transportation Co., Inc., in which it sought a judgment declaring the parties' respective rights and obligations under an asset purchase agreement. The trial court awarded summary judgment to the Defendant. We affirm.
Shelby
Court of Appeals
River Park Hospital v. BlueCross BlueShield & Volunteer State Health M2001-00288-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Charles D. Haston, Sr.
This case involves a dispute over rates paid to a TennCare health care provider. The plaintiff hospital had been a participating provider for the defendant TennCare managed care organization ("MCO") for several years, being paid an agreed contractual rate for services provided to the MCO's enrollees. When the parties' contract expired, it was not renewed. After expiration of the contract, the hospital continued to provide emergency services to the MCO's enrollees, as it was required to do under federal law. For those emergency services, the hospital billed the MCO at its full, standard rates. The MCO refused to pay the hospital's standard rates, and instead paid the hospital the same rate it had paid under the parties' expired contract. This was the same rate the MCO paid hospitals that were participating providers. The hospital filed this lawsuit against the MCO, seeking to recover its full, standard rates for the emergency services provided to the MCO's enrollees after expiration of the parties' contract. After hearing proof on liability, but not damages, the trial court initially denied recovery on all grounds. The hospital moved for reconsideration and to reopen the proof. The trial court granted the motion and ultimately determined that the MCO had been unjustly enriched by the hospital's provision of services to its enrollees. Both parties appealed. We affirm, finding a contract implied in law, and remand to the trial court to determine a reasonable rate for services provided by the hospital and, based on this, for a determination of damages.
Warren
Court of Appeals
Ronald Moore v. Averitt Express M2001-02502-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Thomas W. Brothers
Plaintiff was a former state employee and newly hired employee of Averitt when he was terminated by Averitt due to statements he made alleging illegal conduct of state officials. Plaintiff made the statements to the press prior to being hired by Averitt. Plaintiff filed suit alleging statutory and common law retaliatory discharge. The trial court dismissed the action. We affirm.
Davidson
Court of Appeals
Urology Associates v. Cigna Healthcare M2001-02252-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Ellen Hobbs Lyle
This case involves the interpretation of an arbitration agreement. The plaintiff physicians' group provided medical services to individuals who were insured by the defendant insurance company. Disputes arose regarding the insurance company's payment to the physicians' group for those medical services. Consequently, the physicians' group filed this lawsuit against the insurance company. Pursuant to the parties' contract, the insurance company moved to dismiss or to stay the proceedings and to compel arbitration. The contract contained a dispute resolution provision which stated, in part, that disputes arising between the parties "shall be submitted either to a dispute resolution entity, or to a single arbitrator selected by the American Arbitration Association, as the parties shall agree." The trial court denied the insurance company's motion to compel arbitration, determining that the dispute resolution provision "neither explicitly nor clearly" required the parties to arbitrate, and that the provision was "too vague, imprecise and impractical" to be enforced. The insurance company now appeals. We reverse, concluding that the provision at issue requires the parties to submit their disputes to a third party for binding resolution and, thus, constitutes a valid, enforceable agreement to arbitrate.
Davidson
Court of Appeals
John Hessmer v. Rosa Hessmer M2002-01024-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Clara W. Byrd
This appeal involves a state prisoner who is seeking a divorce from his wife. The prisoner filed a pro se divorce complaint in the Circuit Court for Wilson County. After the prisoner failed to obtain service on his wife, the trial court dismissed his complaint for failure to prosecute. On this appeal, the prisoner takes issue with the dismissal of his complaint because the trial court clerk failed to comply with a local court rule regarding notice before dismissing a complaint for failure to prosecute. Even though the trial court clerk may have failed to comply with the local rule, we have determined that the trial court did not err by dismissing the prisoner's divorce complaint for failure to prosecute.
Wilson
Court of Appeals
Dept. of Transportation v. John Wheeler M1999-00088-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Buddy D. Perry
This appeal involves a dispute between a farmer and the Department of Transportation arising from the Department's condemnation of a portion of his farm for a new highway and bridge. The parties agreed on the fair market value of the property taken but disagreed on the amount of incidental damages to the remaining property. Following a trial in the Circuit Court for Sequatchie County, a jury awarded the farm owner $200,000 in incidental damages. The Department asserts on this appeal (1) that there is no evidence that the remaining property suffered incidental damages, (2) that the trial court erred by permitting an unlicensed real estate appraiser to offer an expert opinion regarding the value of the remaining property, and (3) that the evidence does not support the jury's damage award. While we have determined that the trial court erred by admitting the opinion testimony of the unlicensed appraiser, we have determined that this error did not affect the judgment and that the evidence supports the jury's decision regarding the existence and amount of incidental damages.
Sequatchie
Court of Appeals
Lee Kraft, Executor for Ms. Helen Bergida v. Ezo-Goten M2001-03137-COA-R3-CV
Authoring Judge: Judge John A. Turnbull
Trial Court Judge: Walter C. Kurtz
Personal representative of deceased patron brought this premises liability suit against restaurant owner/occupier alleging that patron tripped and fell from dangerous top step of front stairs to restaurant. On defendant's motion for summary judgment, the trial judge accorded no weight to the opinion of plaintiff's expert architect, ruled that there was no proof of causation, and granted summary judgment. We find that a reasonable juror could conclude from the circumstantial evidence in the record that patron fell due to tripping on the dangerous top step. Because the circumstantial evidence creates a dispute as to a genuine issue of material fact, we hold that summary judgment was inappropriate, reverse the trial court, and remand the case.
Davidson
Court of Appeals
State, ex rel Mary Clark v. Vernon Wilson M2001-01626-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Carol L. Soloman
The State of Tennessee, ex rel. Mary E. Clark appeals the final order of the trial court awarding retroactive child support from the date DNA test results established the appellee as the father of the child in question, instead of from the date of the parties' separation by divorce decree entered almost six years earlier. We find that the trial court incorrectly ordered retroactive child support from a date other than the date of the parties' separation and failed to make the required written findings to support a deviation from the guideline amount in its award of retroactive child support. Therefore, we vacate the trial court's decision and remand for further proceedings consistent with this opinion.
Davidson
Court of Appeals
Jenny Parrott v. John Abraham M2001-02938-COA-R3-JV
Authoring Judge: Judge William B. Cain
Trial Court Judge: L. Raymond Grimes
Appellant/Father appeals dismissal of his petition seeking to be named residential custodian of his minor child. The trial court found that Tennessee was not the "home" state of the child under Tennessee Code Annotated section 36-6-216 and dismissed the case for lack of subject matter jurisdiction. We reverse.
Montgomery
Court of Appeals
Leslie Moore v. James DeVault M2001-02225-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Ellen Hobbs Lyle
Landowners sought declaratory judgment against neighboring landowners to terminate an easement over their property. The trial court granted summary judgment to the neighbors holding that the easement was an express easement appurtenant, that necessity was not a required element, and that mere nonuse was insufficient to establish abandonment of the easement. We agree with the trial court and affirm.
J.C. Bradford v. Douglas Kitchen M2002-00576-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Ellen Hobbs Lyle
The principal issue in this case is whether the defendant, a member or partner of J.C. Bradford, Inc., waived his right to the arbitration of his claim for damages against the defendants allegedly resulting from various machinations involving fraud and deceit and the violation of Federal and State Securities Laws, by joining a plaintiff class in an action for damages in the U.S. District Court which was voluntarily dismissed after pending four months. The Chancellor held that the defendant filed the District Court action with full knowledge of the facts and thus made an election of remedies, thereby waiving his right of arbitration. We disagree, and reverse the judgment granting an injunction against arbitration.
Davidson
Court of Appeals
Eilene Copenhagen v. Roger Copenhagen M2002-00217-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Muriel Robinson
Appellant, former wife of Appellee, filed a Petition seeking to convert alleged rehabilitative alimony into permanent alimony in futuro and requesting certain other relief, including all accrued and vested benefits in her former husband's retirement plan. The trial court dismissed the Petition in its entirety holding the alimony previously awarded to be alimony in solido. We reverse the finding as to the character of the alimony previously awarded and affirm as to all other relief sought. The case is remanded to the trial court for further proceedings.
This dispute arises out of a personal guaranty executed by the defendants securing a loan. Following a trial by jury, the court below awarded the plaintiff $68,330 in damages plus attorney's fees and costs. On appeal, the defendants contend that the court below erred in applying the parol evidence rule to evidence which would show mistake and in not permitting the defendants to amend their answer. We reverse the judgment entered below and remand for a new trial.
Thomas Dyer has filed a respectful and timely Petition to Rehear. He states that our opinion mistakenly asserted that he failed to petition the Department for a Declaratory Order. Upon further examination of the record, we are obligated to conclude that he is correct. The record shows that he indeed filed a Petition for Declaratory Order, and that the petition was denied. Thus, we were mistaken to conclude that we lacked jurisdiction to consider his Petition for a Declaratory Judgment under the UAPA.
Davidson
Court of Appeals
Larry Parrish vs. Robert Marquis E2004-00875-COA-RM-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Dale C. Workman
In this malicious prosecution case the Appellants, Larry E. Parrish and Larry E. Parrish, P.C., contend that the Knox County Circuit Court erred in granting motions for summary judgment filed by the Appellees, Robert S. Marquis and Ronald C. Koksal. We reverse the Circuit Court's judgment of dismissal as to Mr. Koksal and we affirm the Circuit Court's judgment of dismissal as to Mr. Marquis on alternative grounds.
