Fain v. Fain M1999-02261-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Russell Heldman
In this post-divorce proceeding, Clifton Dean Fain ("Father") filed a petition seeking sole custody of the parties' minor child. Susan Lorraine Fain ("Mother") counterclaimed for a modification of the joint custody arrangement or, in the alternative, for sole custody of the child. The trial court awarded Mother sole custody. Father appeals the award of sole custody to Mother. He also challenges the award of attorney's fees to Mother and questions the fairness of the quantum of his visitation time with the child. Mother seeks attorney's fees for this appeal. We affirm.
Williamson
Court of Appeals
Sweatt vs. Bd. of Paroles M1999-02265-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Ellen Hobbs Lyle
Appellant Antonio L. Sweatt brings this Petition for a Common Law Writ of Certiorari regarding the Tennessee Board of Paroles' decision to deny him parole based on the seriousness of the offense that he committed. Appellant avers that the Board of Paroles acted illegally or arbitrarily in denying his parole because appellant asserts that his guilty plea agreement included the agreement that he would only serve thirty percent of his twenty-five-year sentence and then he would be released on parole.
Davidson
Court of Appeals
Brenda Sandusky vs. Danny Sandusky M2000-00288-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Jim T. Hamilton
This appeal marks the third time that disputes over the child support provisions in the Sanduskys' 1988 marital dissolution agreement have reached this court. After we remanded the second appeal to calculate Mr. Sandusky's child support arrearage and to award Ms. Sandusky her legal expenses, Mr. Sandusky asserted new and different grounds to evade paying child support and also asserted that he should receive a credit against his arrearage because he had paid for a portion of his daughter's wedding. Following a bench trial, the Chancery Court for Wayne County terminated Mr. Sandusky's child support obligations regarding both of his children and reduced his arrearage by the amount of his financial contribution to his daughter's wedding. The trial court also awarded Ms. Sandusky only a portion of her legal expenses and declined to award her any discretionary costs. Ms. Sandusky asserts on this appeal that the trial court erred by relieving Mr. Sandusky of his child support obligations, by reducing Mr. Sandusky's arrearage by the amount of his contribution to his daughter for her wedding, by miscalculating the interest on Mr. Sandusky's arrearage, and by refusing to order Mr. Sandusky to pay all her legal expenses and discretionary costs. We agree with each of Ms. Sandusky's arguments. Therefore, we reverse the trial court's February 4, 2000 order and remand the case to the trial court for further proceedings consistent with this opinion.
Wayne
Court of Appeals
Bobby Rains v. Bend of the River M2000-00439-COA-R9-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: John A. Turnbull
This appeal involves an eighteen year old who committed suicide with his parents' .25 caliber handgun. The parents filed suit in the Circuit Court for Putnam County against the retailer who sold their son ammunition for the handgun shortly before his death. They later amended the complaint to seek loss of consortium damages for themselves and their son's surviving siblings. The trial court denied the retailer's motion for summary judgment regarding the wrongful death claims, as well as the retailer's motion to dismiss the loss of consortium claims. Thereafter, the trial court granted the retailer permission to seek a Tenn. R. App. P. 9 interlocutory appeal from its refusal to dismiss the wrongful death and loss of consortium claims. We granted permission to appeal and have now determined that the trial court erred by denying the retailer's Tenn. R. Civ. P. 56 and 12.02(6) motions because, based on the undisputed facts, the suicide was not reasonably foreseeable and was the independent, intervening cause of the young man's death.
Putnam
Court of Appeals
Associates Home Equity Svcs. v. Franklin National Bank M2000-00516-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Irvin H. Kilcrease, Jr.
In this appeal Associates, a mortgage company, appeals the trial court's holding that it was not entitled to equitable subrogation to the rights and priority of earlier mortgagees whose loans it paid off. Franklin, another mortgage company, made a loan to the same property owners one day before Associates made its loan and recorded its deed of trust three days before Associates recorded its deed of trust to the same real property. Associates claims that, although Franklin recorded first, Associates is entitled to priority pursuant to the doctrine of equitable subrogation. Franklin filed a Motion for Judgment on the Pleadings, which the trial court granted. We find that because the remedy of equitable subrogation is an equitable one dependent upon the facts and circumstances of the situation and the equities between the parties, judgment on the pleadings was inappropriate.
Davidson
Court of Appeals
Searle vs. Pfister M2000-00731-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Lonnie R. Hoover
The unmarried parents of a young child separated, and the mother subsequently filed a petition to modify the father's visitation so she could move to California with her new boyfriend. The trial court initially denied her petition, but reversed itself after the mother and the boyfriend married. On appeal, the father argues that the trial court erred because it failed to recognize the mother's vindictive motive. We affirm the trial court.
Williamson
Court of Appeals
Mayhew vs. Wilder M2000-01948-COA-R10-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Hamilton V. Gayden, Jr.
Davidson
Court of Appeals
Mayhew vs. Wilder M2000-01948-COA-R10-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Hamilton V. Gayden, Jr.
Davidson
Court of Appeals
Stephen Stamps vs. Victoria Dibonaventura W1999-00534-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Julian P. Guinn
This case arises from the Appellee's legal representation of the Appellant in a Petition for Post Conviction Relief. The Appellant's Petition was denied by the Criminal Court of Henry County and the Court of Criminal Appeals. After denial of his Application for Permission to Appeal by the Tennessee Supreme Court, the Appellant filed a Complaint of Legal Malpractice with the Circuit Court of Henry County. The trial court dismissed the Appellant's Complaint following a Motion to Dismiss filed by the Appellee. The Appellant appeals from the dismissal of his Complaint filed in the Circuit Court of Henry County. For the reasons stated herein, we affirm the trial court's decision.
Henry
Court of Appeals
Arthur/Mary Anderson vs. John Howser W2000-00937-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: James F. Russell
This is a medical malpractice case. The defendants filed a motion for summary judgment, supported by an affidavit from the defendant physician. The plaintiffs filed the opposing affidavit of an expert physician. When the defendants attempted to depose the plaintiffs' expert, they were informed that he would not be testifying at trial. However, the plaintiffs' expert's affidavit was never withdrawn from the record, nor was his testimony recanted. The trial court gave the plaintiffs additional time to secure an expert for trial. The plaintiffs failed to secure an expert within the time period and filed a notice of voluntary non-suit. The trial court granted the defendants' motion for summary judgment, holding that the plaintiffs' response to the motion for summary judgment must be supported by the affidavit of an expert who is expected to testify at trial. The plaintiffs appealed. We affirm. Where the plaintiff submits the affidavit of an expert in response to a motion for summary judgment, and it is undisputed that the expert will not testify for trial, the plaintiff has not demonstrated that he has a justiciable claim warranting a trial, and the granting of summary judgment is appropriate.
Shelby
Court of Appeals
Nancy Record vs. Brian Record W2000-01294-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Robert A. Lanier
Husband appeals a final decree of divorce as it pertains to an upward deviation of child support, division of marital property and debt, and the award of alimony in solido for attorney fees. We affirm as modified.
Shelby
Court of Appeals
Wills & Wills vs. Raymond Gill W1999-01755-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Walter L. Evans
Owners of adjacent properties entered into negotiations and a subsequent agreement regarding issues concerning their properties. Dispute between the parties arose after one owner began construction of a Walgreens store in an area one party contended was other than that designated for the location of future buildings on the plat configuring the parties' properties. The other party alleged that the parties did not have an agreement between them concerning the location of future buildings on the adjacent properties. The trial court determined that the parties only had a meeting of the minds as to drainage improvements and further determined that the agreement was a contract only for drainage in that the agreement did not contain specific, written restrictive covenants as to the location for future buildings. We affirm.
Shelby
Court of Appeals
Connie Givens vs. Ed Mullikin W1999-01783-COA-R9-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: John R. Mccarroll, Jr.
Plaintiff filed this action against defendant in an underlying personal injury suit and the defendant's liability insurance carrier, alleging that the defendants are vicariously liable for the actions of the attorneys the insurance company hired pursuant to its policy to represent the insured in defense of plaintiff's personal injury suit. The complaint alleges that said attorneys were guilty of abuse of process, invasion of privacy, inducing the breach of a confidential relationship, inducing the breach of an implied contract of confidentiality, and inducing the breach of an express contract. The trial court denied defendants' motions to dismiss, and this case is before this Court on a Tenn.R.App.P. 9 interlocutory appeal.
Shelby
Court of Appeals
Douglas Shanklin vs. UT Medical W1999-01982-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert L. Childers
This appeal arises from a trial court's finding that a subsequent action by Doctor was barred under the doctrine of res judicata due to the court's decision in an earlier case. On appeal, Doctor argued that his earlier action for age discrimination and retaliation in violation of the Tennessee Human Rights Act was not the same as the current action, which involves breach of contract and unjust enrichment. We affirm the trial court's ruling.
Shelby
Court of Appeals
McDonnell P.L.C. vs. Select-O-Hits W2000-00044-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Floyd Peete, Jr.
This is a suit for the recovery of attorney's fees. The Appellee brought a complaint against the Appellant in the Chancery Court of Shelby County, seeking to recover $120,000.00 in attorney's fees. The Appellant filed an answer and counterclaim, seeking to recover $10,000.00 it paid to the Appellee and $10,953.05 it paid in legal fees to another law firm. The Chancery Court of Shelby County found that the $120,000.00 fee was excessive and entered a judgment in favor of the Appellee in the amount of $89,685.00. The trial court dismissed the Appellant's counterclaim. The Appellant appeals from the decision of the Chancery Court of Shelby County granting a reduced amount of attorney's fees to the Appellee and dismissing the Appellant's counterclaim. For the reasons stated herein, we affirm the trial court's decision as modified.
McBee vs. HCA Health Svcs. of TN M2000-00271-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Walter C. Kurtz
This appeal involves a hospital patient who was injured in a fall two days following surgery. The patient and her husband filed suit against the hospital in the Circuit Court for Davidson County alleging that her attending nurse had negligently permitted her to ambulate without adequate assistance and support. The hospital filed a motion for summary judgement supported by the attending nurse's affidavit stating that she had complied with the applicable standard of care for the post-operative ambulation of surgical patients. The patient did not submit any countervailing expert affidavits, and the trial court granted the hospital's summary judgment motion. On this appeal, the patient asserts that she should not have been required to file countervailing expert affidavits either because her complaint was based on simple negligence or because the attending nurse's negligence was so plain that no expert testimony was required. We find that the patient's complaint is for medical malpractice and that the attending nurse's conduct is not so plainly negligent that it obviates the necessity of expert proof. Accordingly, we affirm the trial court.
Davidson
Court of Appeals
Karine Bailey vs. Michael Bailey M2000-00325-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Don R. Ash
These parties were divorced in September 1995, and their Marital Dissolution Agreement was incorporated in the decree of divorce. They were parents of two children, and the court approved the agreement for shared physical custody of the children whereby each parent had custody of both children fifty percent of the time. The MDA provided, "[T]he parties have agreed to deviate from the child support award guidelines due to the shared physical custody of the children." Husband paid Wife $500 per month, which was not in accordance with the guidelines. In June 1999, Husband filed a motion to terminate his child support obligation because of a significant increase in Wife's income. The trial court denied the application, and Husband appeals. We vacate and remand for further proceedings.
Rutherford
Court of Appeals
Elliott vs. The Blakeford at Green Hills M2000-00365-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Thomas W. Brothers
The Director of Food Service at the defendant retirement home injured her hand on the job, and was terminated by her supervisor. She filed suit against her employer, claiming that she had been discharged in retaliation for making a workers' compensation claim. At the close of the plaintiff's proof, the trial court granted the defendant's motion for directed verdict. We reverse.
Davidson
Court of Appeals
Tonya Ray vs. William Ray M2000-00895-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Carol L. Soloman
This appeal involves a dispute over the custody of three-year-old twins between their biological father and the former husband of their biological mother. The biological father intervened in the divorce proceeding between the twins' mother and her husband in the Circuit Court for Davidson County seeking custody of the children. Following a bench trial, the trial court declared the parties divorced and awarded custody of the parties' two biological children to the mother's former husband. The trial court also concluded that the mother's former husband was comparatively more fit than the twins' biological father to have custody of the twins. In response to the biological father's Tenn. R. Civ. P. 59.04 motion suggesting that it had applied the wrong legal standard when it determined the custody of the twins, the trial court found that placing the twins with their biological father would expose them to a "substantial risk and danger of great harm." On this appeal, the twins' biological father takes issue with the evidentiary foundation of the trial court's refusal to grant him custody of his children. We have determined that the record does not contain clear and convincing evidence to support the trial court's conclusion that placing these children in their biological father's custody will expose them to substantial harm. Accordingly, we vacate the portion of the decree awarding custody of the twins to their biological mother's former husband.
Davidson
Court of Appeals
Keeton vs. Hill M1999-02272-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Ellen Hobbs Lyle
Plaintiff, a former employee, appeals from the trial court's grant of summary judgment to her former employer on her sexual harassment claim. Because the employer successfully demonstrated the elements required to establish the affirmative defense for employers recognized in Parker vs. Warren County Util. Dist., 2 S.W.3d 170, 175-76 (Tenn. 1999), we affirm the trial court.
Davidson
Court of Appeals
Allied Business vs. Abraham Musa W1999-00378-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: John R. Mccarroll, Jr.
This appeal involves a breach of contract regarding a commission owed for the sale of a business. Allied, the broker, claims that Abed Amro owes it a commission based on the contract between the parties. Amro, however, claims that he is not liable under the Listing Agreement even though it is undisputed that he signed the contract. The trial court held that Allied was not entitled to a judgment against Amro because Amro did not have an ownership interest in the business that was sold. We reverse.
This is an appeal from the trial court's modification of an order of visitation increasing the appellee's amount of summer visitation. We affirm the judgment of the trial court.
Cheatham
Court of Appeals
S.E.A., Inc. vs. Southside Leasing Company and Moss W. Yater E2000-00631-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: John F. Weaver
S.E.A., Inc. brought suit in Knox County Chancery Court seeking an injunction and alternatively, damages, against its lessor, Southside Leasing Company, and Southside's secured creditor, Moss W. Yater, regarding a non-disturbance agreement. Yater is also Southside's majority shareholder, president and director. S.E.A.sought to sublease a portion of the property. Pursuant to the terms of the lease between S.E.A. and Southside, Southside consented to the sublease and executed the requested non-disturbance agreement. However, Yater, Southside's secured creditor, refused to execute the non-disturbance agreement unless Southside received a portion of the rent from the sublease. Defendants filed motions for summary judgment which were granted by the Trial Court. S.E.A. appeals the Trial Court's granting of summary judgment to the Defendants. We affirm.
