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 However, the plaintiffs' expert's affidavit was never withdrawn from the record, nor was his testimony recanted.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.
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
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
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
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.
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.
Knox
Court of Appeals
Barry Robinson v. Donald Brooks M2003-00185-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Ellen Hobbs Lyle
This case involves the sale by auction of certain real property in Davidson County. The buyers brought suit in Davidson County Chancery Court seeking specific performance or, in the alternative, damages for breach of contract. From the trial court's grant of summary judgment for the defendants, the plaintiff buyers appeal. We affirm.
Davidson
Court of Appeals
Tammy Elizabeth Hickman & Danny Ray Hickman vs. Eugenia Darlene Hickman E2000-00927-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Jeffrey F. Stewart
Plaintiffs sued to terminate the mother's parental rights. The Trial Judge held plaintiffs failed to carry the burden of proof. We affirm.
Rhea
Court of Appeals
Dudley vs. Dudley M1998-00982-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Carol A. Catalano
In this divorce case, the trial court awarded the divorce to the Wife and divided the property. Husband appeals the award of the marital residence and its contents to Wife. We affirm.
Montgomery
Court of Appeals
Turner vs. Turner M1999-00482-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Marietta M. Shipley
This is a divorce case. Following a bench trial, the court below (1) granted a divorce to wife; (2) divided the marital property; (3) awarded wife alimony in the form of a $1,640.55 monthly payment out of husband's retirement account; and (4) declared that the alimony award was to be secured by the husband's retirement account. Husband appeals the alimony award, the use of the retirement account as security for the payment of alimony, and the trial court's division of the marital property. Wife takes issue with the division of the parties' marital property. We affirm.
Davidson
Court of Appeals
Turner vs. Turner M1999-00482-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Marietta M. Shipley
This is a divorce case. Following a bench trial, the court below (1) granted a divorce to wife; (2) divided the marital property; (3) awarded wife alimony in the form of a $1,640.55 monthly payment out of husband's retirement account; and (4) declared that the alimony award was to be secured by the husband's retirement account. Husband appeals the alimony award, the use of the retirement account as security for the payment of alimony, and the trial court's division of the marital property. Wife takes issue with the division of the parties' marital property. We affirm.
Davidson
Court of Appeals
Lassiter vs. Lassiter M1999-00374-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Carol A. Catalano
This case involves a divorce ending a seven-year marriage. The divorce was awarded to the wife on grounds of the husband's inappropriate marital conduct. The trial court divided the property and debts according to the parties' stipulations. The court then awarded the wife alimony in futuro and ordered the husband to pay $750 of the wife's attorney fees. The husband appeals the awards of alimony and attorney fees. We affirm.
Robertson
Court of Appeals
State Dept. of Children's Svcs. vs. L.S., In the Matter of D.S. M1999-00847-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: John J. Maddux
The Trial Court removed minor child from the parental home on grounds child was dependent and neglected. We affirm.
Pickett
Court of Appeals
Joiner vs. Metro Gov't M2000-00413-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Carol L. Soloman
The Trial Court entered consent Judgment over objection of defendant. We vacate Judgment and remand.
Davidson
Court of Appeals
Moss vs. TN Board of Paroles M2000-00128-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Ellen Hobbs Lyle
At the hearing where appellant's parole was revoked, the Hearing Officer admitted sworn statements of alleged victims. The Trial Court upheld the revocation. We affirm.
Davidson
Court of Appeals
Wilson vs. So. Centr. Corr. Facility Disciplinary Bd M2000-00303-COA-RM-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Jim T. Hamilton
An inmate in a privately operated prison filed a Petition for Writ of Certiorari against the disciplinary board at that facility. The trial court dismissed his petition for failure to state a claim. We affirm
Wayne
Court of Appeals
Franklin Nat'l Bank vs. Prowell M2000-00580-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Jeffrey S. Bivins
The Circuit Court of Williamson County refused to issue a writ of certiorari to review a judgment of the General Sessions Court of that county because the petition was untimely and the same issues were already pending in an action in Maury County. We affirm.
Jimmy B. Hillard, et al vs. Buddie Ruth Franklin E2000-00402-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Richard R. Vance
This is a suit for specific performance. The plaintiffs entered into an agreement with the defendant to purchase certain real property for $80,000. Before the purchase was closed, a house on the property was destroyed by fire, and the defendant collected $35,000 as proceeds from her homeowners' insurance policy. The purchase of the property did not proceed to closing and the plaintiffs filed suit for specific performance of the contract at a purchase price of $45,000 -- this amount being the difference between the original purchase price and the insurance proceeds collected by the defendant. The trial court granted the plaintiffs summary judgment. The defendant appeals, contending that this case is not ripe for summary judgment. We affirm.
Jefferson
Court of Appeals
Walter E. Everette, et al vs. Hubert G. Berry, et al E2000-00461-COA-R3-CV
Trial Court Judge: Daryl R. Fansler
In this dispute over real estate, the Plaintiffs seek to have a quit claim deed conveying certain property to the Defendants declared spurious, as well as injunctive relief relative to rights-of-way adjacent to their property. The Chancellor granted the relief the Plaintiffs sought, resulting in this appeal. We affirm.
Knox
Court of Appeals
Steamfitters vs. Phillip Morris W1999-01061-COA-R9-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: James F. Russell
Union health and welfare funds brought an action against tobacco companies and their trade associations to recover the funds' costs of treating their participants' smoking-related illnesses. The tobacco companies moved to dismiss the complaint, arguing that the funds' economic injuries were derivative of the participants' physical injuries and, consequently, too remote for recovery. The trial court granted the motion to dismiss on the funds' antitrust claim but denied the motion on the funds' claims for fraud and deceit, misrepresentation, conspiracy and violation of the Tennessee Consumer Protection Act. Permission for interlocutory appeal was granted to the tobacco companies by both the trial court and the appellate court. We affirm the trial court's dismissal of the antitrust claim and reverse the trial court's denial of the motion to dismiss on the remaining claims, finding the plaintiffs' alleged injuries are too remote, as a matter of law, to permit recovery. The cause is remanded for entry of an order dismissing the plaintiffs' complaint.
Shelby
Court of Appeals
Jackie McGregor vs. Gregor Scott McGregor E1999-00877-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: L. Marie Williams
This is a divorce case. Following a bench trial, the court below (1) granted the parties a divorce on stipulated grounds; (2) divided the marital property; and (3) found that wife was not entitled to an award of alimony, but that funds withdrawn by her from a joint account immediately prior to her filing for divorce constituted necessary temporary support for her and the parties' daughter. Wife appeals the trial court's characterization of certain real property as marital property and the trial court's division of the marital property. Both wife and husband take issue with the trial court's treatment of the funds withdrawn by wife from the joint account. We affirm the judgment of the trial court, as modified.
