In Re: Estate of Vivian McSwain M2001-02309-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Frank G. Clement, Jr.
Robert L. Poe, in his capacity as the executor of the Estate of Vivian K. McSwain, filed a motion to set his fee and expenses. Following a bench trial on the executor's motion, the trial court awarded the executor $20,000. The executor appeals, arguing that the award is inadequate. We affirm.
Davidson
Court of Appeals
K. Mahendra Chowbay v. Brian Davis, et al. M2001-01838-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Marietta M. Shipley
In this premises liability case, K. Mahendra Chowbay ("Plaintiff") sued the owners of a club, Silverado's Saloon and Dance Hall ("Silverado's"), for injuries Plaintiff received during an assault by one of Silverado's patrons, Brian Davis. Plaintiff also sued Davis. Silverado's owners, Pat Patton and Eight Track Management Company, LLC, d/b/a Silverado's Saloon and Dance Hall ("Defendants"), filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss which must be treated as a motion for summary judgment because matters outside the pleadings were submitted to the trial court. Defendants contended in their motion that since Davis' assault of Plaintiff occurred on property neither owned nor operated by Defendants, Defendants owed no duty of care to Plaintiff to protect him from such an assault. The trial court granted Defendants' motion. Plaintiff appeals. We affirm.
Davidson
Court of Appeals
Joe Livingston v. Jennifer Elaine Livingston M2001-02697-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: John W. Rollins
This is a divorce case. The trial court granted Joe Phillip Livingston ("Father") a divorce from Jennifer Elaine Livingston ("Mother") on the ground of inappropriate marital conduct and awarded primary physical custody of the parties' two minor children to Father. Mother was granted visitation rights; however, the court ordered that she "refrain from allowing the parties' children to be at the residence of [Mother's] maternal grandmother" during visitation. Mother appeals the award of custody and the granting of the divorce to Father. In addition, Mother also raises a procedural issue and questions the admission of certain evidence. We affirm.
Coffee
Court of Appeals
Tracey L. (Yanusz) Taylor v. John J. Yanusz M2001-02760-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: C. L. Rogers
This appeal involves a dispute over the custody of a five-year-old boy. His parents were divorced following his mother's extramarital affair. Their marital dissolution agreement established a joint custody arrangement with the father having primary physical custody. Following an unsuccessful two-year reconciliation effort, the child's mother petitioned the Sumner County General Sessions Court for sole custody. The father insisted that the child's circumstances had not changed and that he continued to be more fit than the mother to be the child's primary custodian. The trial court, sitting without a jury, determined that the child's circumstances had changed and that the child's interests would be best served by placing him in his mother's custody. The father asserts on this appeal that the child's circumstances have not changed materially and that the evidence does not support giving sole custody to the mother. While we have determined that the child's circumstances changed following his parents' divorce, we have determined that the evidence preponderates against the trial court's conclusion that the changes are so escalating and dangerous that they required a change in the original custody arrangement. Accordingly, we vacate the order awarding the mother sole custody of the child and remand the case for further proceedings.
Sumner
Court of Appeals
Tonya Ray v. William Ray M2002-01553-COA-R10-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Carol L. Soloman
This extraordinary appeal involves a dispute over the custody of four-year-old twins. On October 5, 2001, this court vacated an order of the Circuit Court for Davidson County granting custody of the twins to the former husband of their biological mother and remanded the case for the purpose of determining whether the twins' biological father is currently fit to have custody and whether placing the twins in his custody will expose them to substantial harm. On June 27, 2002, the trial court declined to permit the biological father to continue visitation with the twins pending court-ordered psychological evaluations of the biological father and the twins. We have determined that the June 27, 2002 order must be vacated because it lacks evidentiary support and is based on a significant misinterpretation of our October 5, 2001 opinion.
Davidson
Court of Appeals
Kuehne & Nagel, Inc. v. Preston, Skahan & Smith International, Inc. M1998-00983-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Walter C. Kurtz
This appeal involves a contract dispute between a customs broker and an importer of Russian vodka. The customs broker sued the importer in the Davidson County General Sessions Court seeking to recover $4,781.16, and the importer counterclaimed alleging fraud, breach of fiduciary duty, and usury. After the general sessions court dismissed both cases, the parties appealed to the Circuit Court for Davidson County. On the day of trial, the trial court denied the importer's motion to exclude nine invoices that the customs broker had failed to produce during discovery. Thereafter, the trial court, sitting without a jury, awarded the customs broker a $4,623.16 judgment and dismissed the importer's countersuit. On this appeal, the importer asserts that the trial court erred by refusing to exclude the nine invoices and that the evidence preponderates against the judgment. We have determined that the trial court did not abuse its discretion by denying the importer's motion in limine and that the evidence supports the judgment for the customs broker. Accordingly, we affirm the judgment.
Davidson
Court of Appeals
Charles Dallas Cauthern, et al. v. City of White Bluff, Tennessee M1998-00991-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Leonard W. Martin
This appeal stems from two landowners' efforts to change the zoning classification of their property from residential to commercial and industrial. After the White Bluff Town Council denied their request, the landowners filed a petition for writ of common-law certiorari in the Chancery Court for Dickson County alleging that the council's action was invalid because one council member who had recused himself from voting on the proposed zoning change actively opposed their request and caused another council member to recuse himself. The trial court, sitting without a jury, denied the landowners' petition, and the landowners have appealed. Treating the petition as a complaint of declaratory judgment, we have determined that the effectiveness of the council member's recusal is a nonjusticiable political question. Accordingly, we affirm the trial court's conclusion that the landowners were not entitled to judicial relief.
Dickson
Court of Appeals
Calvin Tankesly v. Sgt. Pugh, et al. M2000-01520-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Ellen Hobbs Lyle
Davidson
Court of Appeals
Stanley Alford vs. Pamela Alford E2001-02361-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Joyce M. Ward
In this divorce case, the trial court dissolved a marriage of 21 years and divided the parties' marital property. Stanley David Alford ("Husband") appeals, arguing that the division of property was not equitable and that the trial court erred in requiring him to pay the post-separation debts of his wife, Pamela Ward Alford ("Wife"). By way of a separate issue, Wife contends that the trial court erred in refusing to award retroactive child support. We affirm.
Hamblen
Court of Appeals
E2001-02860-COA-R3-CV E2001-02860-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Billy Joe White
Campbell
Court of Appeals
Rita Jones vs. Clinton Jones E2001-03112-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Steven C. Douglas
In this divorce case, the issues raised on appeal all pertain to the trial court's alimony award. That court awarded Rita Jo Findley Jones ("Wife") alimony of $756 per month "until the death or remarriage of [Wife] or until such time as the court modifies its order in this regard." Clinton Garland Jones ("Husband") appeals, contending that Wife is not entitled to alimony; that, if she is entitled to spousal support, she should be awarded rehabilitative alimony rather than alimony in futuro; and that, in any event, $756 per month "is excessive." We modify the trial court's award of alimony. As modified, it is affirmed.
Cumberland
Court of Appeals
James Raulston vs. Montgomery Elevator E2002-00216-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Dale C. Workman
This is a negligence action stemming from injuries allegedly sustained by Plaintiff James Michael Raulston when the elevator in which he was riding allegedly fell approximately five floors and came to an abrupt stop. Mr. Raulston sued Defendant Montgomery KONE, Inc. ("Montgomery KONE"), alleging it was negligent in failing to properly maintain the subject elevator in a safe condition. Montgomery KONE filed a motion for summary judgment, which the Trial Court granted. Mr. Raulston argues on appeal that the Court's grant of summary judgment was improper. We find there are genuine issues of material fact and therefore vacate the judgment of the Trial Court.
Knox
Court of Appeals
Roy Jones vs. Perry Spurling E2001-02875-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Frank V. Williams, III
This is a suit by Roy Jones, a tenured teacher in the Morgan County School System, against Perry Spurling, Keith Adcock, Cassandra Duncan, Debbie Lively, and Conrad Strand, Members of the Morgan County Board of Education, Paul Scarbrough, Superintendent of the Morgan County Schools, and the Morgan County Board of Education. The suit seeks, by means of a writ of certiorari, to overturn a determination of the Board that Mr. Jones' employment should be terminated because of an altercation between him and a student. We vacate and remand.
Morgan
Court of Appeals
City of Gatlinburg vs. James Odom, d/b/a Thomas Kincade Galleries E2001-02934-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Richard R. Vance
On nine separate occasions, the defendant was cited to the Gatlinburg Municipal Court by the City of Gatlinburg for building without a permit. The citations were consolidated for trial on October 17, 2001. Following an adverse ruling, the defendant attempted to appeal to the Sevier County Circuit Court. In doing so, he filed his appeal bonds in the circuit court. The City moved to dismiss the appeals, contending that the appeal bonds should have been filed in the municipal court. The circuit court dismissed the appeal, finding that it had no jurisdiction of the appeal. We affirm.
Sevier
Court of Appeals
Janet Bolton, et al vs. State of Tennessee E2001-02960-COA-R9-CV
Authoring Judge: Judge David Michael Swiney
Janet Bolton and Jack Bolton ("Plaintiffs") sued the State of Tennessee ("State"), alleging the State was liable for injuries Janet Bolton received in a motor vehicle accident which occurred on a State highway in Loudon County. The State filed a Motion for Summary Judgment, arguing it was entitled to judgment as a matter of law under the defense of discretionary function immunity. The Tennessee Claims Commission denied the motion. The State appeals. We affirm, in part, and reverse, in part, and remand.
Loudon
Court of Appeals
Jimmy Pardue vs. Theresa Pardue W2001-01731-COA-R3-CV
Authoring Judge: Judge D'Army Bailey
Trial Court Judge: Dewey C. Whitenton
This is an appeal from the trial court's decision denying appellant's motion to void an Irreconcilable Differences divorce decree because it was granted within ninety-days of the divorce's filing. Though the appellant sought the voiding of the decree as alternative relief, it appears the essence of the relief sought is child support modification. Thus, the attempt to void the decree is a collateral attack on the judgment and the ninety-day requirement cannot be used in a collateral attack to void a divorce decree.
Sherry Hopkins vs. James Hopkins E2001-02849-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Ben W. Hooper, II
In this appeal from the Circuit Court for Sevier County the Appellant, James Franklin Hopkins questions whether the Trial Court erred in awarding alimony to the Appellee, Sherry Mae Hopkins, and in ordering that all of Ms. Hopkins' debts be paid out of proceeds from the sale of the marital residence. Mr. Hopkins also asserts that Ms. Hopkins unlawfully disposed of marital assets. We affirm in part and modify in part.
Sevier
Court of Appeals
Robert Jones vs. Vick Idles E2001-02833-COA-R9-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: William E. Lantrip
Anderson
Court of Appeals
Robert Jones vs. Vick Idles E2001-02833-COA-R9-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: William E. Lantrip
Anderson
Court of Appeals
Larry Morgan d/b/a Morgan Contracting vs. Tellico Plains E2001-02733-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Lawrence H. Puckett
In this contract dispute, the Plaintiff, Morgan Contracting, Inc. ("Morgan") sued the Town of Tellico Plains, alleging that it was due $68,464.86 under the terms of the contract. Tellico Plains answered with the defense that Morgan's claim was time-barred under the sixty-day limitations period set forth in the contract. After a non-jury trial, the Court ruled that Morgan had not filed suit within the contractual limitations period and consequently dismissed Morgan's cause of action. On appeal, Morgan argues that the Trial Court erred in not finding that Tellico Plains waived its right to rely upon the contractual limitations period provision. We affirm the judgment of the Trial Court.
Monroe
Court of Appeals
Cheryl Nichols v. Transcor America M2001-01889-COA-R9-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Marietta M. Shipley
A female prisoner who was allegedly raped by an employee of TransCor America, Inc., an inmate transportation company, brought suit against the company for negligence and breach of contract. The trial court granted partial summary judgment to the defendant company on the negligence claim, ruling among other things that it is not a common carrier under Tennessee law. The court also denied the company's motion for summary judgment on the plaintiff's contract claim. Both parties filed applications for an interlocutory appeal, which we granted. We affirm the trial court as to both issues.
Richard Taylor vs Steven Burleson E2001-02381-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Thomas J. Seeley, Jr.
In this declaratory judgment action, plaintiffs lot owners, sought to invalidate subdivision restrictive covenants on grounds other lot owners had violated the restrictions. The Trial Court refused. We affirm.
Washington
Court of Appeals
Dairy Gold vs. Michael Thomas E2001-02463-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Frank Brown, III
In this dispute over a commercial lease, the Chancellor entered Judgment for lessor for limited rents, taxes and attorney's fees. On appeal, we affirm. In this dispute over a commercial lease, the Chancellor entered Judgment for lessor for limited rents, taxes and attorney's fees. On appeal, we affirm.
